Findings Of Fact Respondent is licensed by the State of Florida, Department of Health and Rehabilitative Service as a pest control service authorized to perform all functions for which such organizations may be licensed. Gilbert Bellino was certified operator for Respondent from prior to the earliest charge in the Administrative Complaint until mid-1977. He was certified in the four types of treatment authorized by pest control companies, viz. fumigation, general household pest control, including rodent control, termite or other wood infesting organisms control, and lawn and ornamental pest control. A certified operator is required to supervise and direct the activities of all employees engaged in pest control. Many of the complaining witnesses made their first contact with Respondent when answering an advertisement for a onetime household pest treatment and a free termite inspection. Lloyd Green responded to an ad in which Respondent offered a spray treatment of the yard and house for $15. Folsom and Jones appeared and after an inspection of his house advised Green that he had dry wood and subterranean termites and induced him to sign a contract to treat them at a price of $286. After reflection and before any work was done Green called and cancelled the contract. He had the house inspected by Mr. Chapman of Chapman Pest Control who found no evidence of active infestation. All evidence Chapman found of wood damage was done prior to the timber having been processed. The house was later inspected by David Jones, District V Entomologist and he too found no evidence of active infestation. A second inspection of Green's home was made by Jones in company with Casale, the President of Respondent. The only evidence found was one hole in a bed slat which had occurred before the lumber was processed. Turpentine beetles and pine sawyer beetles are wood borers that attack trees but not processed lumber. Once lumber is processed any further damage from these beetles is highly improbable if not impossible. Evidence of the damage they have caused will remain in the wood but is readily distinguishable from an active infestation by one with almost any training in pest control. Wood borers make round holes and any eliptical hole found in timber is indicative that the hole was made before the wood was processed. The oblique angle to the borer's tunnel cut by the saw when the lumber was processed causes an eliptical hole. Charles Casale visited Robert Rankin's house for a free termite inspection and identified himself as an employee of Respondent. He was accompanied by another man who inspected the crawl space under the house. Upon completion of the inspection Casale advised Rankin he had an infestation and needed treatment which would cost $300. After getting an opinion from another pest control company that he did not have termites Rankin called HRS and David Jones inspected the entire house. At this inspection Jones found no evidence of active infestation but a colony of fleas from Rankin's two dogs. At the time of Casale's inspection application for an identification card had not been submitted for Casale. Thelma P. Wray contracted with Respondent for fumigation of her house. No written instructions were given her by Respondent, nor was she advised to remove medicines. She was advised to remove only milk cartons, cheese and open food. The only warning sign placed on front and rear of house during fumigation (Exhibit 4) on November 10, 1974 did not show type of fumigant used and stated house is safe for reentry at 10:30 a.m. December 11, 1974. This sign appeared on the house the evening of December 10, 1974 and was placed only at the front and rear. No notice of this fumigation was provided to the County Industrial Hygienist who maintains records of notices of all fumigations. Neither Mr. nor Mrs. Chaney testified. No one having personal knowledge was called to identify Exhibit 6 and no evidence was offered that Larry A. Donald, Jr. was employed by Respondent and visited the Cheney home without a valid identification card. Mrs. Ruby Moser did not testify. No witness was produced to testify regarding Phillip Jones' visit to the Moser home on June 10, 1975 or identify Exhibit 7. Neither Mr. nor Mrs. Donald R. Seldes testified. No evidence was presented regarding the alleged visit of Bill Gillian, while an employee of Respondent, to the home of the Seldes. Judith Bashline was contacted by Respondent through telephone solicitation for special pest cleanout and termite inspection. One man sprayed for the pest cleanout and he was followed by Phillip Jones and Ken Ely, Jr. who, after inspecting the attic, advised her she had an infestation in the attic in a dormant state which needed immediate treatment. She entered into a contract for spot treatment for $190. After Jones and Ely left Mrs. Bashline began having misgivings and called another pest control company for information. She was referred to HRS and there contacted David Jones who inspected the property. Upon inspection Jones found no evidence of active infestation - only the preprocessed type damage found in the other homes. When Helen M. Hopper purchased her home at 1037 - 12th Street North, St. Petersburg, Florida she acquired a subterranean termite policy from Respondent. She then started monthly sprayings with Respondent. After the first spraying on September 16, 1975, Ken Ely, Jr., an employee of Respondent, went into Hopper's attic and told Mrs. Hopper she had borers in the roof and needed immediate treatment to save the roof. After he left she called another pest control company for verification. When that company inspected the attic they reported no problem with borers. She then called HRS and David Jones inspected the premises October 24, 1975 and in the attic he found only old damage which had occurred before the wood was processed. There was no infestation for which treatment was indicated. When Donald R. Bond II and his wife purchased a home his mother recommended they use Gulf Coast Pest Control. In January, 1977 Robert R. Plowman, an employee of Respondent, advised the Bonds that they had powder post beetles and dry wood termites and the attic needed to be treated. He came back that evening when Mr. Bond was home and a contract for the work was signed. The following day Mrs. Bond had two other pest control companies inspect the house. Whey they advised her there was no evidence of active infestation she cancelled her contract and called HRS. On February 10, 1977 David Jones inspected her property. He found no evidence of borer or termite infestation; however Jones did find evidence of rat infestation. On June 26, 1976 Robert R. Plowman, an employee of Respondent, inspected the home of Rita M. Spera at 9783 - 52nd Avenue North, St. Petersburg, Florida and reported to her that there was an infestation of wood borers in the attic and she needed to have fumigation. The previous year the Speras had replaced the shingles on the roof and had found the wood in good condition. Accordingly Mrs. Spera really didn't believe Plowman and called HRS for verification. When David Jones Inspected the house on July 2, 1976 he found only evidence of old damage that had occurred before the wood was processed. No evidence of active infestation was observed. Mrs. Ellen M. Hameroff received a telephone solicitation from Respondent for a cleanout and termite inspection. She accepted the offer and on September 2, 1976 Robert R. Plowman, an employee of Respondent, inspected her attic and reported that powder post beetles were present and treatment was needed which would cost $200 to $400. Plowman returned that evening to talk with Dr. Hameroff but they didn't sign a contract. The following day another pest control company was contacted for an inspection. They reported no infestation. She then called HRS and on November 22, 1976 David Jones inspected the property and found only evidence of old damage. On September 1, 1977 William C. Bargren, Scott Askins and F. R. DuChanois, Entomologists with HRS inspected the Hameroff property. They found evidence that pine sawyer beetles had been in the tree from which some sheathing boards in the attic had been processed. There was no evidence of infestation in the Hameroff home. In December, 1976 Robert L. Dill had a spray and free inspection by Respondent on his home at 1551 Citrus Street Clearwater, Florida. Following an inspection of the home, Robert R. Plocnan and John D. Lucas, employees of Respondent, advised Dill that he had powder post beetles in the attic, ceiling and floor under the house and needed treatment. Before agreeing to the treatment for the powder post beetles and preventive treatment for termites for which Respondent wanted $500, Dill had two other pest control companies inspect the property. Both of these companies advised Dill he had no infestation. Jimmy Robinson of Exterminator Terminix, International, a certified operator, inspected the Dill property on November 22, 1976 and found no evidence of powder post beetles or termites for which treatment was indicated. He noticed no damage to floor but did see some evidence of borers before the wood was processed. When Dill reported the incident to HRS, David Jones inspected the property on January 20 and 26, 1977, the second time in company with the Casales, Plowman and Donald. Damage to wood in the floor was done before the lumber was processed and no infestation was present for which treatment was indicated. Lawrence A. Donald, an employee of Respondent, holds a certified operator's license and he found evidence of "tremendous damage due to boring animals" under Dill's house. He opined that there were live larvae in the wood, however, his credibility and expertise left a great deal to be desired. During a monthly contract spraying Robert R. Plowman, an employee of Respondent, told Mrs. Shirley I. Bond that she had powder post wood borer beetles in the attic of her home at 6701 - 19th Street North, St. Petersburg, Florida and needed to have the attic power dusted. Mrs. Bond gave Plowman a check for $295 but after her daughter-in-law's experience, stopped the work. She called HRS and David Jones inspected her property on April 14, 1977. He found no evidence of infestation and in Jones' opinion the power spray of Dridie (a trade name for silica gel) would not be appropriate to treat dry wood termites or powder post beetles. Raymond L. Jackson employed Respondent for the advertised "clean-out" and free inspection. On January 6 and 7, 1977 Robert R. Plowman, an employee of Respondent, inspected Jackson's property at 6243 - 6th Avenue South, St. Petersburg, Florida and advised Jackson that he had active termites and powder post beetles and needed treatment. Jackson signed a contract and paid Plowman $300 for the work. About two weeks later two men power dusted Jackson's attic. After reading an article in the newspaper about powder post beetles Jackson called HRS and his property was inspected by Askins on July 26, 1977 and by Askins and Bargren on August 10, 1977. The only evidence of damage they found was that caused by turpentine beetles prior to the wood being processed. In their opinion no treatment was indicated before the power dusting was done. Mrs. Helen Stambaugh had a "clean-out" and free termite inspection in July, 1977 at her home at 2518 - 67th Avenue South, St. Petersburg, Florida by Respondent. Larry D. Brown, an employee of Respondent, to whom an application for identification card had not been submitted, told Mrs. Stambaugh that dry wood termites were infesting her garage and treatment was necessary. Spot treatment was offered for $130. She contacted another pest control company who, after inspection, advised that no treatment was indicated. She then called HRS and on July 20, 1977, Bargren and Askins inspected her property and found only evidence of old turpentine beetle damage in the garage which had occurred before the wood was processed. No infestation for which treatment was indicated was observed. In October, 1975 representatives from Gulf Coast Pest Control, Louis Casale, the company manager, Carmine Casale the owner and Gilbert Bellino, the certified operator, met with HRS representatives in Jacksonville to discuss the numerous complaints HRS had received about Respondent and to formulate remedial action. At this meeting the need for additional training of their salesman was discussed in connection with the complaints filed by Green, Rankin, Wray, and others with particular emphasis on the need to train their operators to distinguish old damage in the preprocessed tree from damage requiring correction. Respondent agreed to increase their training to improve the quality of their inspectors. Respondent has discharged all of the salesmen who made the misrepresentations noted above. Plowman was finally discharged because "he was too dumb" to learn to distinguish between old damage not requiring treatment and new damage which did require treatment. However, Plowman was continued as an employee even after criminal charges involving fraudulent misrepresentation had been filed against him.
The Issue The issue is whether Petitioner’s performance under its lawn care service contract with the Department of Management Services was deficient, and, if so, whether the amounts deducted by the Department from the monthly payments made to Petitioner under the contract were reasonable and appropriate.
Findings Of Fact Petitioner provides lawn care services to residential and commercial properties in the central Florida area. Andre Smith is Petitioner’s owner and president. In November 2004, the Department entered into a contract with Petitioner for lawn care services at nine Department buildings. The contract was awarded to Petitioner through a competitive procurement process in which Petitioner was the low bidder. The contract number was ITN No. 26-991- 490-Z. Petitioner was to be paid a total of $7,384.92 per month under the contract. Each of the nine buildings was apportioned a specific amount of the total price in the contract. The scope of work under the contract generally included lawn care services, open field mowing, and irrigation system maintenance. The lawn care services required under the contract included mowing, edging, weed control, fertilizing, watering, shrub and tree pruning, mulching, and clean-up. The contract specified the frequency that the services were to be performed. Mowing was to be done weekly between April and November, and every two weeks between December and March; hedges and shrubs were to be trimmed at least monthly unless more frequent trimming was required for aesthetic reasons; and mulching was to be done in March and September. The contract required Petitioner to take soil samples at the beginning of the contract and annually thereafter. The results of the soil samples were to be used to determine whether Petitioner needed to apply iron, lime, or other minerals to the lawns. The contract required Petitioner to inspect each building’s irrigation system at the beginning of the contract, and required Petitioner to provide a report to the building manager regarding any repair work needed on the system. Petitioner was also required to check the irrigation system on every visit to ensure that it was operating properly. The contract required Petitioner to apply pre-emergent weed control and fertilizer. The weed control was to be applied in the spring and the fall, and the fertilizer was to be applied three times during the year on an agreed upon schedule. The mulching required by the contract was to be done in March and September. The mulch was to be maintained at a depth of four inches throughout the year. The contract required Petitioner to use cypress mulch. The day-to-day operation of the buildings subject to the contract was the responsibility of on-site building managers, not the Department staff in Tallahassee. The building managers were responsible for the direct oversight of Petitioner’s work under the contract, and they were also responsible for reviewing and evaluating Petitioner’s performance. Petitioner began providing services under the contract in December 2004. Petitioner received full payment from the Department for the services that it provided from December 2004 through March 2005, even though several of the building managers were not satisfied with Petitioner’s performance under the contract during that period. Several of the building managers spoke with Mr. Smith regarding their concerns with Petitioner’s performance under the contract. They also documented Petitioner’s performance deficiencies on the monthly summary report forms that the contract required Petitioner to submit in order to obtain payment. Starting in April 2005, the building managers were required to fill out evaluation forms in addition to the monthly summary report forms. The impetus for the creation and use of the evaluation forms was Petitioner’s continuing unsatisfactory performance under the contract. The building managers used the evaluation forms to rate Petitioner’s performance as “good,” “fair,” or “poor” on the 20 categories of service that Petitioner was required to perform under the contract. Each service was assigned an equal weight -- e.g., one twentieth or five percent of the contract -- and if all 20 services were not applicable to a particular building, the weight assigned to each service was adjusted accordingly. The evaluation form was developed by Kris Parks, who was the contract administrator for Petitioner’s contract. Ms. Parks developed the form on her own. She did not get the input of the building managers in developing the form, and Mr. Smith was not consulted regarding the development of the form. The evaluation forms were used by Ms. Parks in conjunction with the monthly summary report forms in order to reduce the payments made to Petitioner under the contract. Each service for which Petitioner was given a “poor” rating by a building manager resulted in a five percent deduction in the amount paid to Petitioner. Typically, a “poor” rating reflected work that was not performed at all by Petitioner, rather than work that was performed unsatisfactorily. In some situations, a smaller deduction was made if the comments on the evaluation form or the monthly summary report form reflected partial performance despite the “poor” rating. For example, if Petitioner received a “poor” rating for mowing, but the comments reflected that Petitioner provided services twice during the month rather than the required four times, the deduction was 2.5 percent rather than five percent. The reduction of payments under the contract for unsatisfactory performance or unperformed work is specifically authorized by Section 3.13 of the contract. Section 3.13 of the contract states that the monthly summary report form “will be used by [the building managers] to track performance of services, in order to determine a proportional deduction in payment for services that are not performed as agreed” in the contract. It does not mention any other form. The contract does not define “proportional deduction” and it does not include the methodology to be used in calculating the deduction. The contract is silent on those issues. Petitioner’s contract with the Department was amended in May 2005 to reduce the number of buildings that Petitioner served from nine to three. The three remaining buildings were the ones closest to Petitioner’s business location in Lakeland, i.e., the Hargrett and Trammel Buildings in Tampa and the Peterson Building in Lakeland. The reduction in the scope of the contract was the result of Petitioner’s continuing unsatisfactory performance under the contract, and it reflected the Department’s well- founded view that Petitioner was not able to handle all nine buildings. The Department staff was trying to help Mr. Smith by allowing Petitioner to retain a portion of the contract rather than canceling the contract altogether based upon Petitioner’s poor performance. The invoices submitted by Petitioner for April 2005 through July 2005 were as follows: $7,384.92 (April); $7,384.92 (May); $1,938.64 (June); and $1,938.64 (July). The April and May invoices were based upon the nine buildings served by Petitioner in those months. The June and July invoices were based upon the three buildings served by Petitioner in those months. The Department did not pay the invoices for April 2005 through July 2005 in full. It paid Petitioner $2,451.782 for April (33.2 percent of the invoice), $835.82 for May (11.6 percent), $453.393 for June (23.4 percent), and $904.66 for July (46.7 percent). The amounts deducted -- $4,933.14 for April; $6,531.10 for May; $1,485.25 for June; and $1,033.98 for July -- were based upon the Department’s determination that Petitioner failed to perform certain work under the contract. The amounts deducted were calculated by Ms. Parks using the information provided to her by the building managers on the evaluation forms, as described above. The letters by which the Department informed Petitioner of the payment reductions advised Petitioner that it “may have the right to an administrative hearing regarding this matter, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.” The letters explained what Petitioner was required to do to request a hearing and advised Petitioner that the "[f]ailure to timely request a hearing will be deemed a waiver of [the] right to a hearing." Petitioner timely filed letters challenging the deductions for April, June, and July 2005. The total deductions for those months were $7,452.37. Petitioner did not file anything challenging the deduction for May 2005. Therefore, the $6,531.10 deduction for that month is not at issue in this proceeding. Petitioner is not entitled to the full amount billed to the Department for April, June, and July 2005 because all of the services required under the contract were not performed during those months. Mr. Smith conceded this point in his testimony at the final hearing.4 Mr. Smith contended at the hearing that the amounts deducted by the Department were not reasonable in light of the services that Petitioner did provide. However, Mr. Smith did not identify what he would consider to be a reasonable deduction for the work that Petitioner admittedly did not perform. Petitioner routinely failed to provide mowing services at each of the buildings at the intervals required under the contract. For example, Petitioner only mowed one time during the month of June 2005 at the Hargrett and Trammel Buildings, rather than the four times required under the contract. Petitioner did not put down mulch at any of the buildings in March 2005, as required by the contract. When the building managers asked Mr. Smith about the mulch, he told them that he would get to it. Mr. Smith testified that he was told by the Department staff in Tallahassee that the mulch could be put down in any month so long as it was done twice a year. That uncorroborated, self-serving testimony was not persuasive. Petitioner put down mulch at some, but not all of the buildings in April and May 2005. The mulch that Petitioner put down did not cover all of the areas requiring mulch and it was not put down at the required four-inch depth. At the Trammel Building, for example, the mulch put down by Petitioner was less than half of that required by the contract. No mulch was ever put down at the Hurston Building in Orlando or the Grizzle Building in Largo. Petitioner’s performance was often deficient in regards to trimming and clean-up of debris. For example, on one occasion at the Trammel Building, Petitioner left more than 60 bags of leaves in and around the building’s dumpster; at the Hargrett building, there were overhanging tree limbs that went untrimmed for an extended period; and Petitioner routinely failed to do trimming at the Grizzle Building, although he did a good job picking up debris at that building. The services provided by Petitioner at the Trammel Building got so bad that the building manager had to hire another company at a cost of approximately $1,800 to clean up the site so that it would be presentable for an event in the vicinity of the building that was attended by a U.S. Senator and other dignitaries. The building managers were never given the results of the soil samples that Petitioner was required to take at the beginning of the contract even though they repeatedly requested that information. When Mr. Smith was asked about the soil samples by the building managers, he told them that he would get them done. Mr. Smith claimed at the hearing that he sent the results of the soil samples to the Department staff in Tallahassee, although he could not recall whom specifically he sent the results to, and he offered no documentation to corroborate his testimony on this issue. Petitioner’s testimony regarding the soil samples was not persuasive. The Department’s witnesses credibly testified that they never received the results of the soil samples from Petitioner. Indeed, the evidence was not persuasive that Petitioner ever took the soil samples required by the contract. The print-outs presented at the final hearing, Exhibit DMS-11, do not have any identifying information that would corroborate Mr. Smith’s testimony that the samples described in the print- outs were from the buildings that were the subject of the contract.5 Moreover, the print-outs are dated March 8, 2005, which is more than four months after the samples were supposed to have been taken by Petitioner, and several of the soil samples had pH levels outside of the range set forth in the contract. Mr. Smith testified that Petitioner applied fertilizer and pre-emergent weed control at each of the buildings, as required by the contract. That uncorroborated, self-serving testimony was not persuasive. The more persuasive evidence establishes that Petitioner did not apply fertilizer or pre-emergent weed control. On this issue, the building managers credibly testified that they were never advised by Mr. Smith that the fertilizer or pre-emergent weed control was being applied, even though those services were to supposed be performed pursuant to a schedule agreed upon with the building managers; the building managers credibly testified that they did not observe any signs that fertilizer had been applied, such as the greening of the grass; and fertilizer could not have been applied at the Hurston Building without killing all of the grass because the fertilizer needs to be watered into the lawn, and the sprinkler system at the building was not working at the time. Petitioner failed to perform the required inspection of the irrigation system at several of the buildings, including the Hurston Building, at the beginning of the contract in order to determine whether any repairs needed to be done. The system at the Hurston Building did not work for an extended period of time, which caused large sections of grass around the building to die from a lack of water. The performance deficiencies described above were cited on the monthly summary report forms and the evaluation forms completed by the building managers, which in turn were used by Ms. Parks to calculate the amount deducted from the monthly payments made to Petitioner under the contract. Petitioner was responsible for the costs of the mulch, fertilizer, and pre-emergent weed control required under the contract. The money that Petitioner “saved” by not providing those services likely exceeds the amounts deducted by the Department pursuant to Section 3.13 of the contract. For example, the mulch purchased by Petitioner for the Trammell Building cost approximately $2,250, and that was only half of the mulch needed for that building alone. Petitioner is no longer providing lawn care services to the Department under the contract. The contract was revoked based upon Petitioner’s unsatisfactory performance. The revocation of the contract, which occurred at some point prior to August 2005, is not at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a final order rejecting Petitioner’s challenge to the payment reductions made by the Department for the months of April, June, and July 2005. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 3rd of November, 2006.
Findings Of Fact At all times material hereto, Respondent was the holder of Pest Control Business License No. 875, Pest Control Operator's Certificate No. 667, and Identification Card No. 6415. Respondent's business was and is located at 512 South Eighth Street, Fernandina Beach, Florida. The anniversary date for purposes of renewal of Respondent's Pest Control Business License was November 30, 1978. Those persons holding identification cards issued in connection with the operation of H & K Pest Control were Respondent, Dolphus Lee White, Donna Kay Young and George Morrison Young. Respondent was licensed to conduct pest control business only in the category of Lawn and Ornamental pests. On November 28, 1978, two days before Respondent's pest control business license was to expire, HRS received an Application for Pest Control Business License and Identification Cards from Respondent requesting renewal of the aforementioned licenses and identification cards. However, the Certificate of Insurance attached to the renewal application failed to meet the requirements for minimum financial responsibility for property damage contained in Section 482.071, Florida Statutes. The Certificate of Insurance in question indicated that the limits of liability for property damage were $50,000 for each occurrence, and $50,000 in the aggregate. The statutory requirements are $50,000 for each occurrence and $100,000 aggregate. As a result, by notice dated November 29, 1978, HRS returned Respondent's application, indicating that the Certificate of Insurance did not meet the statutory standard. In addition, the November 29, 1978 letter specifically informed Respondent that . . . it is unlawful to operate a pest control business that is not licensed." HRS received a corrected Certificate of Insurance on February 27, 1979. However, this Certificate of Insurance did not indicate the name of the insured pest control business, and was, accordingly, returned to Respondent's insurance agent. Respondent's name was then apparently inserted in the Certificate of Insurance by the agent, and the corrected Certificate of Insurance was received by HRS on March 3, 1979. As a result, Respondent's application for renewal of his licenses and identification cards was not, in fact, complete until March 3, 1979. The renewal licenses and identification cards were thereafter issued on June 4, 1979. The delay between receipt of the completed application and issuance of the licenses and identification cards was apparently due to work load in the HRS Office of Entomology. Notwithstanding the fact that Respondent was licensed only in the area of Lawn and Ornamental Pest Control, H & K Pest Control performed pest control services inside buildings at the Florida Marine Welcome Station in Fernandina Beach, Florida, for the period July 1, 1978 through and including two days prior to the hearing in this cause on September 28, 1979. The State of Florida, Department of Commerce, Office of Administrative Services was billed ten dollars monthly on H & K Pest Control statements for this service, and payment was remitted by the State of Florida for these services to H & K Pest Control. In addition, on at least two occasions H & K Pest Control performed pest control services inside buildings at the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. One of these occasions occurred in November, 1978 for which H & K Pest Control billed the Florida Welcome Station in Yulee, Florida, thirty dollars on its statement dated January, 1979. At no time during the performance of pest control services inside the Florida Marine Welcome Station in Fernandina Beach, Florida, and the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida, was Kinsey C. Haddock or any other employee of H & K Pest Control licensed in the category of General Household Pests and Rodents, or in any other category that would have allowed them to treat the inside of buildings for pests. Although Respondent was never observed to have personally sprayed the insides of buildings at either Welcome Station, persons identifying themselves as employees of H & K Pest Control did perform those services, the State of Florida was billed on statement forms of H & K Pest Control for these services, and payment was remitted by check to H & K Pest Control. On December 27, 1978 an inspector from HRS visited the business location of H & K Pest Control at 512 South Eighth Street, Fernandina Beach, Florida. The business office was open and being operated by a person claiming to be an employee of H & K Pest Control who identified herself as Joyce French. Ms. French advised the inspector that she had been trained in the category of General Household Pest Control, and had performed these services inside the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. Records maintained by the Office of Entomology indicate that no identification card or other license had ever been issued to a "Joyce French" in the area of General Household Pest Control. Respondent denied that he had ever employed a "Joyce French", nor was Miss French called as a witness in this proceeding. Further, other than the statement attributed by the inspector to Ms. French, there is no evidence in this proceeding to corroborate that Ms. French did, in fact, perform pest control services of any description. Further, on December 27, 1978, Respondent did not have displayed in his business office a certified operator's certificate renewal or a current business license, as required Chapter 482, Florida Statutes. Finally, the record in this proceeding establishes, and Respondent has, in fact, admitted, that he is not a full- time employee of H & K Pest Control. In fact, the record clearly establishes that Respondent has been a full-time employee of Container Corporation of America as an engineer in the Power Department of that company since December 9, 1937. Respondent works rotating shifts in his employment at Container Corporation of America, but usually works the 8:00 a.m. to 4:00 p.m. shift an average of only five days per month. When not working the 8:00 a.m. to 4:00 p.m. shift at Container Corporation of America, Respondent operates his pest control business at the address above mentioned.
Findings Of Fact The dredge/fill project sought to be permitted involves a proposed residential lot located on Lake Padgett in Pasco County. The tract is also adjacent to a canal dug by the Applicant and his father. The Applicant, Michael Millen, acquired this property from his father, Otis Millen, who continues to own other property in this area. Petitioner is an adjoining landowner, and also acquired his property from Otis Millen. DER prematurely issued the proposed permit 1/ on August 9, 1984. If reissued, this permit would allow the Applicant to develop a residential lot by filling a portion of a cypress swamp and creating compensating wetland elsewhere on his property. Additionally, the Applicant agrees to dedicate a three acre "conservation easement" and to install a culvert to improve drainage. The advantages of this project include the creation of a homesite where none is available now, acquisition by the State of three acres of dedicated wetland (conservation easement) and improved drainage through the culvert installation. There would be no net loss in cypress swamp area. The disadvantages include temporary turbidity in surrounding waters and some tree removal in the construction area. The Applicant would replace any trees removed through replanting. The Applicant also seeks permits to build a "summer kitchen" over jurisdictional wetlands and to fill the lakefront area with white sand. These "add-on" permit requests are not properly a part of this proceeding, however, and were not contemplated in the application at issue here. DER's expert witness gave only limited testimony on their feasibility during the rebuttal phase of this hearing. Petitioner has raised numerous objections to all the proposed projects, but principally to the one at issue here. He was not notified of DER's intent to grant the dredge and fill permit, and became aware of the project only after he observed construction activity. It was determined that DER had failed to notify him through an oversight of that agency or the Applicant. Petitioner points out that lot development is not being done in accordance with the (proposed) permit. He noted that trees have been cut down, fill was dumped in the canal and work on canal banks was taking place, all in contravention of permit conditions. Petitioner believes DER has acted improperly in tolerating the Applicant's unpermitted construction activity. To support this charge, he called as a witness a neighbor who had placed white sand on his lakefront property, but was required to remove it by DER enforcement personnel. The Applicant, on the other hand, has placed white sand on his beachfront property without a permit, and DER is assisting him in obtaining an after the-fact permit. Petitioner proved, through a series of aerial photographs, and the testimony of both expert and lay witnesses, that the canal which separates his lot from the Millen properties was constructed between 1976 and 1977. DER had jurisdiction at that time, 2/ but no permit was ever sought or obtained. The canal was dug as a "joint venture" of the Applicant and his father. It connects Lake Padgett with a drainage pond several hundred feet behind the lake. This canal has changed area drainage causing one nearby resident to experience periodic property flooding as a result. Prior to the canal's construction, a small drainage ditch with an earthen or cement dam did exist in the general area. However, the canal construction removed the dam and greatly enlarged the size and capacity of the previous ditch. Expert interpretation of aerial photographs revealed that a substantial number of mature cypress trees were removed in conjunction with the Millens' canal project. Some cypress trees were also cut for the recent (unpermitted) construction of the "summer kitchen" by the Applicant. He also constructed a dock which was later determined to be exempt by DER. Again, the Applicant had not obtained DER approval for the dock and had, in fact, been advised to stop construction until a determination of permitting requirements, if any, was made. Petitioner attempted to show a conflict of interest within DER. However, the fact that one DER field representative knew Otis Millen did not demonstrate such a conflict. Rather, DER's enforcement policies have been lax or inconsistent primarily due to a shortage of field personnel.
Recommendation From the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation reissue Permit No. 510852383 to Michael A. Millen. DONE and ENTERED this 24th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER, 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 24th day of September, 1985.
The Issue Whether Respondent is indebted to Petitioners in the amount of $7,152, as alleged in Petitioner's complaint. The hearing in this matter was originally set for January 22, 1979. Respondent orally requested a continuance on January 19, 1979, which was granted. At the rescheduled hearing on February 26, 1979, neither Respondent nor any representative in his behalf appeared at the hearing. A Supplemental Notice of Hearing had been issued by the Hearing Officer on February 2, 1979. In view of Respondent's absence, the matter was tried as an uncontested proceeding.
Findings Of Fact Petitioners are producers of agricultural products in Florida. Respondent Don R. Smith, d/b/a Wabash Valley Sales, Vincennes, Indianna, is a licensed dealer in agricultural products pursuant to Chapter 604, Florida Statutes. Respondent was bonded pursuant to Chapter 604 as such a Florida dealer in the amount of $20,000 during the period June 4, 1977 to June 3, 1978. Surety on the bond was Fidelity and Deposit Company of Maryland, Baltimore, Maryland. The bond is conditioned to secure the faithful accounting for and payment to producers of the proceeds of all agricultural products handled or sold by the bonded dealer. (Testimony of Addison, Petitioners' Exhibit 4) During the spring of 1978, Petitioners made arrangements with M. A. Bridgeman, representative of Respondent, to grade, pack, sell, and ship tomatoes produced by Petitioners at varying prices per box. It was agreed between the parties that Respondent would be paid $1.60 per box for the above services and that the balance of the selling price would be remitted to Petitioners. There was no written contract between the parties, as is customary in the trade, nor any specified period for accounting for the proceeds of the sales. (Testimony of Addison, Bridgeman, Complaint) During the period April 10 to May 5, 1978, petitioners provided a total of 2,460 boxes of various size tomatoes to be sold for the total price of $12,588.80, in accordance with the terms of their agreement. Six of the lots were sold in April, 1978, and two were sold on May 3 and May 5, 1978, to various in-state and out-of-state purchasers by Respondent. In some instances, Bridgeman received payment from purchasers which he immediately placed in Respondent's bank account. Some payments were made directly to Respondent's place of business in Indiana. The entire sum of $12,588.80 was collected in this manner by Respondent or his agent. (Testimony of Addison, Bridgeman, Petitioners' Exhibits 2-3) Under the terms of the agreement, Respondent's fee for handling the tomatoes amounted to $3,936, leaving a balance due and owing Petitioners of $8,652.80. Although Petitioners demanded an accounting from Respondent on several occasions, Respondent did nothing in this respect until August 22, 1978, at which time he remitted a check to Petitioners in the amount of $1,500. A notation on the check indicated that it was in partial payment for tomatoes. (Testimony of Addison, Bridgeman, Petitioners' Exhibit 6) Not having received the balance of $7,152.80 from Respondent, Petitioners filed a complaint with the Florida Commissioner of Agriculture on August 30, 1978, pursuant to Chapter 604, Florida Statutes, and notice of such complaint was provided Respondent by the Department of Agriculture and Consumer Services on September 26, 1978. Respondent filed an answer to the complaint on October 10, 1978, wherein he admitted indebtedness in the amount of $5,652, but claimed that the total amount involved in the transactions was only $7,152, and further requested a hearing in the matter. (Testimony of Addison, Petitioner's Exhibits 5-6)
Recommendation That the Department of Agriculture and Consumer Services issue a final order requiring the Respondent herein to make payment in the amount of $7,152.80 to Petitioners herein within fifteen days of Respondent's receipt of the said final order. DONE and ENTERED this 9th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph S. Marcus, Esquire 317 North Krome Avenue Homestead, Florida 33030 Don R. Smith d/b/a Wabash Valley Sales Post Office Box 266 Vincennes, Indiana 47591 Earl Peterson Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue Whether the conditions of a proposed permit modification issued by the Department of Environmental Regulation to C. M. Symonds on May 1, 1991, are appropriate.
Findings Of Fact The Department of Environmental Regulation (DER) issued Permit No. 361366329 (permit) to C. M. Symonds (Symonds) on July 8, 1988. The permit authorized Symonds to construct a 60-unit residential development in Lee County, Florida. The development site is within Ten-Mile Basin on the north side of Penzance Boulevard, and includes jurisdictional wetlands classified as Class III waters of the state. The permit authorized placement of 11,643 cubic yards of fill on 10.8 acres of jurisdictional wetlands, excavation of 36,060 cubic yards of material from 2.7 acres of jurisdictional wetlands to create a stormwater treatment lake, and construction of a boardwalk and overlook. The 13.5 acres of lost wetlands were cypress prairie which had previously been cleared and was being invaded by Melaleuca. Although previously impacted, the lost wetlands were functional. Mitigation for the lost 13.5 acre wetlands was required by the permit. Because of the poor quality of the impacted wetlands a low mitigation ratio of 0.6 : 1.0 was applied by the DER. Application of the mitigation ratio resulted in a requirement of 8.1 acres of on-site creation/enhancement mitigation to offset the lost wetlands. The on-site mitigation involved re-contouring and re-vegetating the former on- site cypress strand and cypress prairie. Because only 6.4 on-site acres were available for creation/enhancement purposes, off-site mitigation equivalent to the remaining 1.7 acres was required. Application of the mitigation ratio to the remaining required on-site mitigation resulted in 2.8 acres of remaining impact not offset. The permit required off-site mitigation through removal of invasive exotic vegetation in 30.56 acres of the Lee County-owned Six-Mile Cypress Swamp. The off-site mitigation requirement was apparently the result of negotiations between the DER and Symonds. The 30.56 acre Six-Mile Cypress Swamp off-site mitigation area is composed of cypress prairie, comparable to the on-site lost wetlands for which mitigation was not complete. Removal of invasive exotics would help to enhance the functions of the impacted wetlands in Six-Mile Cypress Swamp. Specific Condition 12 of the permit provided that the initial exotic species removal was to take place prior to or concurrently with project construction and be followed up six months later by a second exotic species removal. At the time the DER and Symonds were negotiating conditions under which the July, 1988, permit could be issued, Symonds was under the impression that Lee County officials would allow his enhancement of the county-owned land. Shortly before the permit was issued, Symonds became aware that the county would not allow the mitigation to be performed on county land. There is no evidence that, prior to the issuance of the permit, Symonds notified the DER that he would not be able to fulfill the mitigation requirement to which the parties had agreed. A total of 13.5 acres of jurisdictional wetlands were filled and excavated for the creation of the residential development. The on-site mitigation was completed. The off-site mitigation has not been performed. The residential development has been completed. Prior to January 3, 1989, the DER had a mitigation policy as identified by applicable policy memoranda. On January 3, 1989, the DER mitigation rule (Rule 17-312, Part III, Florida Administrative Code) became effective. In 1990, the DER completed an evaluation of the effectiveness of wetlands loss mitigation through enhancement. Enhancement mitigation is considered effective when the enhanced wetlands becomes self-sustaining and replaces the lost functions of the natural wetlands. The DER review indicates that although enhancement through exotic species removal can be beneficial, the basic problem of over-drainage is not addressed. Over-drainage of an area results in alteration of hydroperiod and encourages the opportunistic invasion of exotic vegetation into an area as native vegetation reacts negatively to the altered hydroperiod. Over-drainage may be corrected through restoration of the normal hydroperiod of the affected area. Commonly, installation or adjustment of weir structures results in raised water levels and rehydration of previously over- drained areas. Forested wetlands, including cypress prairie, are slow growth systems. Enhancement of such systems may take several years to complete and may require long term maintenance and monitoring to become successful. On October 12, 1990, Symonds' agent, Environmental Services Unlimited (ESU), submitted to the DER an off-site mitigation plan for DER approval. The mitigation proposed included removal of Melaleuca and Brazilian Pepper from 7.5 acres of the Six Mile Cypress Preserve, replanting with native vegetation, and a six month follow up removal of exotics. By notice of May 1, 1991, the DER indicated it intended to grant the October 12 request to modify the original permit by providing for off-site mitigation through the enhancement of the 7.5 acres in the Six-Mile Cypress Swamp. Additionally, the DER also indicated it intended to further modify the permit by the addition of proposed specific conditions delineating certain success criteria which would indicate when the forested wetlands enhancement could be considered successful. The DER permit modification provided that Specific Condition 12 would be amended to require periodic follow-up exotic removal until certain "success criteria" were met. The "success criteria" were set forth in Specific Condition 14, which states as follows: The forested wetlands enhancement shall be considered successful when the following criteria are met: Wetland ground cover and shrub vegetation and wetland canopy tree species shall be reproducing naturally; The tree cover shall exceed 50 per cent of the total area and in no area of an acre in size shall the tree cover be less than 50 per cent total cover. Cover measurement shall be restricted to (1) those trees exceeding the herbaceous stratum in height and (2) those indigenous species that are wetland vegetation listed in Florida Administrative Code Rule 17-301.400; The vegetation monitoring data from the herb and shrub strata show that not less than 95 per cent of the vegetation cover is comprised of Florida Administrative Code Rule 17-301.400 listed species. If species occurring in the herb and shrub strata are not listed in Florida Administrative Code Rule 17-301.400, then they shall be species considered to be obligate hydrophytes (species requiring a wetland environment in some or all stages of the life cycle); and Nuisance and exotic species, such as cattail and Melaleuca, shall be limited to one per cent or less of the total cover. Specific Condition 15 provided as follows: The permittee recognizes that it has a continuing obligation to complete the on-site and off-site mitigation and to correct any unsuccessful mitigation attempts beyond the expiration date of the permit and agrees to execute an agreement with the Department evidencing that obligation within 60 days of the issuance of the permit modification. The amended conditions are not acceptable to Symonds. On May 13, 1991, ESU, on Symonds' behalf, filed a request for a 60 day extension to file a petition for hearing "so that we may adequately work out specific conditions of the modification with the permitting staff." Symonds' agents, ESU, continued negotiating with DER to try to agree on mutually acceptable specific conditions for inclusion in the modification. On July 31, 1991, Symonds, ESU, and the DER permitting staff met in Tallahassee and discussed resolution of the matter and modification of the language of the specific conditions set forth in the proposed modification. On September 27, 1991, the DER received a letter, dated September 24, 1991, from ESU with a revised plan to clear Melaleuca and Schinus from a 16 acre area of the Six-Mile Cypress Slough Preserve, with a six month follow up treatment. Although the letter clearly indicates it is the result of the earlier meeting, there is no evidence that the proposal set forth in the letter reflects any agreement between the parties. The 16 acre mitigation site addressed by the September 24 letter is immediately south of Penzance Road at the intersection of Penzance Road and Six Mile Cypress Parkway. According to the letter, heavily invaded areas would be cleared with equipment intended to minimize soil impaction and disturbance, less heavily invaded land would be hand treated and cleared, and a single six month follow-up would be performed. Symonds has not provided reasonable assurances that the mitigation plan related to the 16 acre area of the Six-Mile Cypress Slough Preserve will be successful. The evidence fails to establish reasonable assurances that the suggested mitigation will become self-sustaining or will successfully replace the former function of the lost wetlands on the project site. The evidence fail to establish that an appropriate hydroperiod to rehydrate the wetlands will be sustained. Although the installation of weirs at Daniels Road and in the area of Six Mile Cypress Slough and Ten Mile Canal is allegedly producing a hydroperiod of about 250-260 days, the weirs are located south of the proposed 16 acre mitigation area. The evidence fails to establish that the weirs will beneficially impact the relevant site in such manner as to increase the opportunity for success of the plan. The Lee County Board of County Commissioners and the Florida Department of Agriculture, Division of Forestry, on April 18, 1991, executed a management agreement providing for the restoration and maintenance of certain lands within the Six Mile Cypress Slough Preserve for a period of five years. This agreement fails to provide reasonable assurances that the functions of the wetlands lost through development of the Symonds project will be mitigated. Symonds is not party to the agreement and is without authority to control or influence the execution, continuance, or extension of the agreement. Maintenance and monitoring of the 16 acre site would require at least a period of two to seven years. Symonds declines to commit to the time period which would be required. There is no reliable evidence which would establish that the long term maintenance and monitoring required for successful enhancement of the 16 acre site would be provided. Symonds asserts that the letter dated September 24, 1991, constitutes a separate application for modification of the permit, and that the DER's failure to grant or deny the "application" must result in default approval of the "application". The evidence fails to support the assertion. The letter of September 24 is clearly a follow-up letter based upon continuing negotiations between the DER and ESU as to the October 12, 1990 modification request. The letter references the previous meeting between the DER staff and ESU personnel. Further, Symonds has submitted none of the fees which are required upon the filing of such an application for modification of a permit.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the proposed modification of the Permit #361366329. DONE and RECOMMENDED this 30th day of June, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5699 The Petitioner filed no proposed recommended order. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Respondent. The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 19-20. Rejected, unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth G. Oertel, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Francine Ffolkes, Esquire Claire E. Lardner, Esquire Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Bayfront commenced construction of the biological waste incinerator here at issue prior to March 21, 1992, the effective date of the moratorium on construction of biological waste incinerators and was exempt from that moratorium. An inspection of the premises on April 9, 1992, (exhibit 5) showed substantial work had been accomplished and the inspector concluded, and DEP's legal counsel concurred, that in order to have achieved the construction progress shown on April 9, 1992, the work had to have been commenced prior to March 21, 1992. Further, a building permit to renovate the building into which the waste incinerator was placed was issued November 12, 1991, (exhibit 7) and a building permit to install a waste incinerator was issued March 4, 1992, (exhibit 6). No contradictory evidence was submitted by Petitioner. Respondent's witnesses testified without contradiction that Bayfront's application for an operation permit was complete in all respects, including certification by a professional engineer; that all test results showed the emissions into the atmosphere were within the prescribed standards; that certain conditions contained in the construction permit as a result of the settlement agreement resolving the challenge to the issuance of the construction permit are contained in the operation permit; that those conditions exceed the conditions required by the rules for incinerators; and that Bayfront affirmatively provided the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information that the operation of the incinerator will not discharge, emit, or cause pollution in contravention of DEP's standards as contained in Rule 17-4.070(1), Florida Administrative Code. This testimony is accepted as factual. The draft permit authorizes Bayfront to burn a maximum of fifteen hundred pounds per hour of waste. Each time a test run is conducted to check the emissions, the pounds of waste burned per hour during the test establishes an upper limit on the rate of burning waste. As explained by James L. McDonald, the engineer processing air pollution applications for the Department at Transcript p. 50-51: The construction application asked for a permit at fifteen hundred pounds per hour. So the construction permit is -- the condition that we would want, the Department would normally want the test within ten percent of that fifteen hundred pounds an hour in order to go ahead and issue, if its in total compliance, to issue an operating permit at fifteen hundred pounds. Since the test came in at a reduced rate, below the ten percent, then that's why in the operating permit condition twenty-one says you're limited to the rate that we're, the test was conducted. [sic] Now, also, its interesting to note that in their test, if you look at their runs two and three -- because there are rules that say the Department could accept two runs out of three if a condition occurred that was out of their control -- if your average runs two and three, they would average within ten percent of fifteen hundred. So, as a permit processor, it even gave me some reasonable assurance that they could probably comply with the fifteen hundred. But, since the test of all three runs came in as an average of twelve fifty-one, then the operating permit included that twelve fiftyone. And like the real world out there, just like power plants, when it comes time for their annual testing, if they are at half speed, their business is down, it allows them to test at half speed. We won't require them to go up to full speed. They can test at half speed. But then they are limited there. And if they go above it at a later date they would have to retest. So they can work their way back up to where the Department has reasonable assurance that the upper limit of fifteen hundred pounds -- that's where later in condition twenty-one of the operating permit it says but in no case shall the maximum permit or burning rate of fifteen hundred pounds per hour be exceeded. Petitioner's second two grounds for challenging the issuance of the operation permit was answered by McDonald's testimony, above quoted, and this evidence was not rebutted by Petitioner. The primary thrust of the evidence presented by Petitioner was that Bayfront had somehow misled the City of St. Petersburg regarding the operation of the incinerator and had not complied with all of the City's requirements in other respects, ergo, Bayfront could not be relied on to comply with the conditions in the operation permit. This evidence is irrelevant to the determination of whether or not the operation of the incinerator complies with all of the Department rules. The conditions of the operating permit require Bayfront to submit periodic reports to the Department from which the Department can determine whether the conditions in the permit are being complied with. Furthermore, the Department requires the permittee to notify the Pinellas County Department of Environmental Management at least fifteen days prior to the date on which each formal compliance test is to begin (Permit Condition No. 22) to allow them to witness the test, if desired. The construction permit, complying with the settlement agreement, required Bayfront to adhere to more frequent testing and more extensive testing then is required by the rules for operating biological waste incinerators. All of the tests and reports submitted by Bayfront on the operation of this incinerator met all of the requirements in the construction permit and the draft operation permit.
Recommendation It is RECOMMENDED that Bayfront Medical Center be issued Permit No. AO52- 224337 to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida. DONE AND ENTERED this 16th day of November 1993 in Tallahassee, Leon County, Florida. K. N. AYERS 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 16th day of November 1993. COPIES FURNISHED: Adrian W. Helm, Esquire 925 14th Avenue North St. Petersburg, Florida 33712 Daniel N. Burton, Esquire Thomas K. Maurer, Esquire Terri L. Gillis-Tucker, Esquire Foley and Lardner 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact At all material times, Respondent has been the certified operator in charge of the pest control activities at American Pest Control, Inc. On September 11, 1989, Respondent conducted an inspection for wood- destroying organisms incidental to the purchase of a residence located at 2 Wisteria Drive, Ormond Beach, by Mr. Orren Nye. The residential lot contains two structures: the primary residence and a detached garage. Respondent detected no problems in the house. However, in the garage, Respondent discovered that work had recently been done on the roof. He observed sawdust on the floor in the northwest corner of the garage. On closer examination, Respondent found that a portion of some of the roof rafters had been cut off and new rafters scabbed together with the old. Respondent noticed that some dry rot remained in the old wood at the joint with the new wood. Because the area was not moist and he did not see how further repairs could be undertaken, Respondent decided not to mention the dry rot in his inspection report. Dry rot is a condition caused by the work of fungi, which are wood- decaying organisms. The fungi are active when the wood is wet. After the fungi are no longer active, they typically leave the wood in a dry, weakened condition. It is from this condition that the term, dry rot, is derived. There was no evidence of active fungi in the visible and accessible portions of the garage, which were dry at the time of Respondent's inspection. There was no evidence of any active termite infestation visible and accessible in the garage. The presence of sawdust was did not conclusively indicate the presence of termites in view of such other factors as the absence of any termite pellets. Following his inspection, Respondent prepared a standard wood- destroying organisms inspection report on a form prepared by Petitioner. The report identifies Mr. Nye's residence. The report lists only the "residence" as the "specific structure inspected." However, under "structures on property NOT inspected," the report states, "none." The inspection report describes the scope of the inspection for wood- destroying organisms as including termitesand wood-decaying fungi. The report is expressly limited to "what was visible and accessible at the time of the inspection." The material findings of the report indicate no visible evidence of wood-destroying organisms observed, no live wood-destroying organisms observed, no "visible damage observed," and no "visible evidence of previous treatment . . . observed." On September 20, 1990, Petitioner's entomological investigator visited the Nye residence in response to a complaint received from Mr. Nye. The investigator found active wood-decaying fungi in the areas of the garaged previously inspected by Respondent, including those areas where Respondent had seen dry rot where new and old wood had been joined. The investigator also found considerable evidence of an active termite infestation. The primary problem noted by Petitioner's investigator was the wood- decaying fungi. The evidence was not clear and convincing that any evidence of termite infestation was visible and accessible when Respondent conducted his inspection about one year earlier. The evidence is stronger that any evidence of wood-decaying fungi was visible and accessible at the time of Respondent's inspection. However, in the intervening year, the garage roof had been leaking for at least five months. On balance, Petitioner has failed to prove by clear and convincing evidence that Respondent overlooked visible and accessible evidence of active wood-decaying fungi. However, by Respondent's own admission, he saw visible damage that he failed to report. The dry rot remaining after the roof repairs clearly constituted damage from the work of wood-destroying organisms, which Respondent was required to report regardless of the absence of evidence of the presence of any active fungi or Respondent's estimation of the lack of need of further repairs. It is impossible to dismiss this omission as immaterial in view of the later problems that arose in the same area of the garage roof. This failure constitutes negligence in the performance of pest control and a deviation from good industry practice and standards in connection with inspections. Petitioner seeks to impose an administrative fine of $500 for the violations alleged in the Administrative Complaint.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing an administrative fine against Respondent in the amount of $500. ENTERED this 5th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1991. APPENDIX TO RECOMMENDED ORDER Treatment Accorded Proposed Findings of Petitioner 1: adopted except for second-to-last sentence, which is rejected as unsupported by clear and convincing evidence. 2: adopted. 3: rejected as hearsay, subordinate, and recitation of evidence. 4: adopted. 5: rejected as subordinate and recitation of evidence except that last sentence is adopted. 6: adopted only as to damage from wood-decaying fungi, not as to the presence of active wood-decaying fungi. 7-8: rejected as recitation of evidence. 9: rejected as unsupported by clear and convincing evidence. Respondent testified to the presence of dry rot. The fungi are active when the area is wet. Because the area was dry, the condition that Respondent observed and failed to report was damage, not active infestation of fungi. 10: rejected as evidence excluded at the hearing. Treatment Accorded Respondent's Proposed Findings 1: adopted except that the inspection report deviated from his observations and the requirements of law as to the indication that Respondent observed no visible damage from wood-destroying organisms. 2: adopted. 3: rejected as subordinate. 4: first sentence adopted. Remainder rejected as subordinate and recitation of evidence except for last sentence. The last sentence is rejected because Petitioner proved by clear and convincing evidence--namely the testimony of Respondent--that he detected dry rot during his inspection and did not report it. Dry rot is damage from a wood-destroying organism. The damage was visible and accessible because Respondent admitted that he saw it. 5-6: rejected as subordinate and irrelevant. 7-8: rejected because Petitioner proved by clear and convincing evidence that the damage from fungi was seen by Respondent during his investigation. COPIES FURNISHED: Ana Sonia Nieves Environmental Health Attorney Department of Health and Rehabilitative Services 400 W. Robinson St., Suite S-827 Orlando, FL 32801 Donald A. Myers, Jr. Lowndes, Drosdick, et al. P.O. Box 2809 Orlando, FL 32802-2809 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact On April 10, 1980, Randy Herring, a Petroleum Inspector for the Department of Agriculture and Consumer Services (hereafter "Department") took a gasoline sample from an unleaded pump identified as Ben 7011 at the Bay Station, SR 329 and I-75, Micanopy, Florida. This sample was taken to the mobile lab in Lake City, Florida, for analysis where it was tested by Mr. Pat Flanagan, Graduate Chemist, and found to be contaminated with diesel or kerosene fuel. The Department issued a stop sale notice on April 21, 1980, in that the unleaded sample tested contained diesel or kerosene fuel which exceeded the distillation range temperatures at 50 percent and 90 percent evaporated temperature as established by the American Society of Testing and Materials (hereafter "ASTM") and adopted by the Department as Rule 5F-2.01, Florida Administrative Code. Specifically, the product was tested at 322 percent F at 50 percent (maximum allowable 240 percent F) and 536 percent at 90 percent (maximum allowable 365 percent F). The end point exceeded the 437 percent limit by testing at 580 percent F+. Mr. Flanagan forwarded the sample to Mr. John Whitton, Bureau Chief of Petroleum Inspection in order to confirm his initial testing. Mr. Whitton also found the unleaded gasoline to be illegal under ASTM standards. The end point temperature exceeded 580 percent F in both tests which indicated the product was grossly contaminated. The Petitioner was permitted to post a $1,000 bond in lieu of confiscation in order to secure the release of the remaining 3,548 gallons of illegal unleaded gasoline for use in private equipment. Dixie Oil has no knowledge as to how the unleaded gasoline was contaminated. As a preventative measure, the company purchased a test kit in 1974 to enable its employees to randomly sample gasoline. Its own sampling indicates that the gasoline previously sold at the station has met standards. This is the first such incident at this station and Dixie Oil has taken steps to attempt to ensure that it will not be repeated. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its $1,000 bond which was required to be posted in lieu of confiscation of 3,548 gallons of contaminated unleaded gasoline. DONE and ORDERED this 9th day of March, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Mr. Reheudean Denby, Vice President Dixie Oil Company of Fla, Inc. Post Office Box 1007 Tifton, Georgia
