The Issue This proceeding was commenced on February 7, 1985, when the Division issued its Notice to Show Cause, alleging a list of seven violations of Chapter 509 Florida Statutes and certain administrative rules. The matter was handled informally and Final Order was entered by Division Director, R. Hugh Snow, on April 11, 1985. (H & R No. 23-16678R). The Final Order was later withdrawn pursuant to an Order of the First District Court of Appeal, (Case No. BG-307, dated October 29, 1985) and the matter was forwarded to the Division of Administrative Hearings. At the commencement of the hearing, George Frix was determined to be authorized to represent his family-held corporation. See Magnolias Nursing and Convalescent Center v. DHRS, 428 So.2d 256 (Fla. 1st DCA 1982). The Petitioner presented the testimony of four witnesses and nine exhibits, marked A-l. The Respondent testified on his own behalf and one exhibit was admitted. Both parties submitted post-hearing proposed recommended orders. On January 27, 1986, Petitioner filed a Motion to Strike certain portions of Respondent's proposed recommended order, based upon Respondent's attachment of five exhibits to his proposed order. Those attachments labeled Exhibits #1 through #4 were not entered into evidence at the hearing and were not considered in the preparation of this Recommended Order. However, the attachment labeled Exhibit #5 was admitted at the formal hearing as Respondent's Exhibit #1 (Final Order of the Division, dated 4/11/85). This document is part of the record in this proceeding. Except as addressed above, the Motion to Strike is Denied. A specific ruling on each party's proposed findings of fact is found in the appendix attached to, and incorporated as part of this Recommended Order. The issue in the proceeding is whether Respondent committed the violations alleged in Petitioner's February 7, 1985, Notice to Show Cause, and if so, what disciplinary or corrective action should be taken.
Findings Of Fact At all times relevant, Sangeo has held license number 23-16678R for the premises known as the Provider at 9713 N. E. 2nd Avenue in Miami Shores. The license was initially issued in January 1982, with an effective date of December 1981. The license is a counter and take-out license; that is, it permits the consumption of food on the premises and preparation of food for take-out. (Hayes testimony). The establishment consists of a sandwich take-out, meat market and grocery. Tables and chairs are provided for the customers, but there are no waitresses. The establishment has a beer and wine license, but not a "COP" (consumed on premises) license. (Testimony of Frix). The Division of Hotels and Restaurants, the licensing authority, maintains a contract with the Department of HRS to conduct inspections of restaurants on a quarterly basis. (Testimony of Livingstone and Hayes). Joanna Thomas, an Environmental Health Specialist, employed by the Dade County Health Department, conducted her first inspection of the licensee on October 24, 1984. She found several code violations: no urinal in the men's room, the hand wash sink blocked by bicycles and inaccessible, an open hole over the heater, failure to keep food at the required temperature, and other violations which she noted on her report and explained to the manager at the premises. (Thomas testimony). Ms. Thomas returned for a follow-up inspection on October 30, 1984. Some corrections had been made. The manager was told that the urinal had to be installed by the next routine inspection visit. (Thomas testimony). The next inspection was conducted on January 4, 1985. Again, several violations were found, and the following remedial actions were listed in the instructions on the inspection report: (The numbers correspond to the numbers on the violation checklist). #5 Provide approved thermometer as was told. #8 Elevate foods off floor in walk-in. #16 Install drainboards on both ends of three-compartment sink. #17 Provide chemical test kit. #20 Provide sanitizing agent for utensils. #25 Store single service articles upside down. #31 Install urinal in one of the restrooms. Handwash sink must be accessible at all times. #33 Provide covers for garbage cans and keep covered. Provide approved garbage containers - not plastic. #36 Clean floor on the side of hand wash sink and clean under items in the storage room. #37 Repair hole over heater or provide a screen to protect entrance of insects/rodents. #38 Light bulbs must be shielded in preparation and dishwashing area. #42 Remove unnecessary articles from storage room. Arrange storage so that floor could be reached for cleaning. Store cleaning maintenance equipment properly. (Petitioner's Exhibit A) At the follow-up inspection on January 10, 1985, Ms. Thomas noted that some of the violations were still not corrected. She found failure to comply with the following: #16, 17, 31, 33, 37, 38. (Numbers correspond to the instructions listed in paragraph 5, above). These violations were the basis for the Notice to Show Cause which gave rise to this proceeding. (Petitioner's Exhibit 3, Notice to Show Cause dated 2/7/85). On February 22, 1985, Ms. Thomas found compliance with #37 and $38, but not the other violations. On her April 10, 1985 inspection visit, her primary concern was that the urinal was still not installed. On her most recent visit on December 11, 1985, a reinspection, all prior violations had been corrected, except the installation of a range ventilation system (not at issue in the Notice to Show Cause) and the urinal. (Testimony of Thomas, Petitioner's Exhibit C). The Provider does not now have, nor has it ever had, a urinal in the men's room. It was issued a license without one. The other violations, designated as "minor" on the January 4, 1985 inspection report, existed for varying periods or occasionally re-occurred, but no longer existed by December 11, 1985. The establishment maintains drainboards, but they are portable and not always in view. A handwash sink exists but on occasion it is blocked. Shields are utilized over the light fixtures, but are removed periodically for cleaning. (Testimony of Frix, Petitioner's Exhibits A and C). George Frix conceded at the hearing that space exists to install a urinal. However, he claims that installation of another water-using device is prohibited by the local pollution control authority. No evidence of that prohibition was presented to substantiate the claim. He also claims that the requirement for the urinal did not exist at the time his license was issued and cites the Division's previous "Final Order", dated April 11, 1985, for authority, since the order does not require correction of the missing urinal. (Testimony of Frix, Respondent's Exhibit
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order finding the Respondent guilty of the violations cited in paragraphs A, B, D, E, F and G of the Notice to Show Cause, dated February 7, 1985, and imposing a fine of $300.00 ($50.00 per violation). That Petitioner enter a Final Order finding the Respondent guilty of the violation cited in paragraph C of the Notice to Show Cause dated February 7, 1985, and requiring that compliance be demonstrated within 60 days of the date of the Final Order or thereafter that license No. 23-166F-R be suspended until compliance is demonstrated. DONE and ORDERED this 6th day of February, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986. COPIES FURNISHED: Richard B. Burroughs, Jr. Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Division of Hotels & Restaurants 725 South Bronough Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Post Office Box 3457 Tallahassee, Florida 32315 Lynne Quimby, Esquire Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George A. Frix, President Sangeo, Inc. P.O. Box 530583 Miami Shores, Florida 33153 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of feet submitted by the parties to this ease. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact #1. Adopted in Finding of Fact #2. Adopted in Finding of Fact #3. Adopted in Finding of Fact #4. Adopted in Finding of Fact #5. Adopted in Conclusion of Law #5. Rejected as a statement of testimony, not a finding of fact. Adopted in Finding of Fact #6. Rejected as immaterial, cumulative and unnecessary. Rejected as immaterial, cumulative and unnecessary. Rejected as a simple statement of testimony rather than a finding of fact. Rejected as cumulative and unnecessary. 13-23. These "proposed findings of fact" are mere recitations of the testimony of various witnesses, and are rejected as such. To the extent that the testimony was credible, material and necessary, the facts adduced are reflected in Findings of Fact #7, 8 and 9. 24-27. These paragraphs citing provisions of the Administrative Code are addressed in Conclusions of Law #4 and 5. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a statement of testimony rather than finding of fact. However, the substance of this paragraph was addressed as Respondent's defense in Finding of Fact #9. Rejected as presenting evidence that was not introduced or admitted at the final hearing (Exhibits 1-4). These exhibits are also immaterial. Exhibit #5 is addressed in Finding of Fact #9. Rejected as a statement of Respondent's testimony and argument of his position. He failed to produce authority that the law and rules did not exist when the facility was licensed. Rejected as substantially inconsistent with the evidence. Rejected as a statement of the Respondent's testimony. His argument that the violations charged were the result of a personality conflict between employees of Petitioner and Respondent, is rejected as based upon wholly unsubstantiated hearsay, and inconsistent with the greater weight of the evidence. Rejected as immaterial. Adopted in part in paragraph 8. The final sentence is rejected as inconsistent with competent substantial evidence that the violations existed on January 10, 1985 and, in some cases, longer.
The Issue Whether information Petitioner provided on pages 36-39 of its SOQ should be considered by the Respondent and, if considered, whether Petitioner should be included in the group of firms within the competitive range?
Findings Of Fact Background On September 11, 1987, Respondent issued Solicitation 8804 for the purpose of selecting a group of contractors which could potentially be awarded contracts to clean up petroleum contamination sites. On September 29, 1987, Respondent held a mandatory contractor's meeting to answer questions from potential contractors regarding the work being procured and the instructions for completing the SOQ. Mr. Paul Gruber attended this meeting on behalf of Petitioner. On October 13, 1987, Respondent cancelled Solicitation 8804 in order to make changes in the solicitation package and to correct an error in the published notice of the contractor's meeting. The notice did not indicate that the meeting was mandatory. Petitioner did not receive timely notice of the cancellation and submitted a SOQ. Respondent returned the SOQ to Petitioner unopened. On October 23, 1987, Respondent issued Solicitation 8809, which was essentially similar to Solicitation 8804. On November 9, 1987, Respondent held a contractors' meeting to answer questions regarding the work being procured and the preparation of the SOQ. In contrast with the contractors' meeting on Solicitation 8804, attendance at this meeting was not mandatory. Petitioner chose not to attend the meeting. Solicitation 8809. Solicitation 8809 consisted of a package which included the following: a pink cover sheet indicating where the SOQ should be submitted and containing the general conditions of the Solicitation; a transmittal letter; Attachment A, General Instructions; Attachment B, Instructions for Preparation of a SOQ; Attachment C, Conflict of Interest; Attachment D, Insurance; Attachment E, Minority Business Certificate; Attachment F, Evaluation Scoresheet; Attachment G, Standard Form 255, Attachment H, Chapter 17-70, F.A.C., Draft Petroleum Contamination Site Cleanup Criteria; Attachment I, Chapter 17-71, F.A.C., Petroleum Contamination Site Priority- Ranking Rule; and Attachment J, Air Stripping Guidelines. Attachment B contained the instructions for preparation of a SOQ, which was to consist of two parts: (1) a transmittal letter, limited to a length of one page, and (2) the SOQ, limited to 35 pages in length. The instructions stated that "the SOQ shall contain the following seven sections:" 1. Introduction, 2. Company Background, 3. Qualifications, 4. Project Management, 5. Personnel Assigned and Availability, 6. Past Performance, and 7. Minority Business Utilization. The instructions for Section 6, Past Performance, required that the contractor list a minimum of ten former clients other than Respondent and provided the format for presenting the required information about former clients. Also, the instructions provided that "All FDER (Respondent) contract work shall be listed separately along with the ten clients described above." The instructions for Section 7, Minority Business Utilization, provided, in part, that "Contractors submitting SOQs under this solicitation must identify intended minority subcontractors and estimated percentage of total contract amount to be awarded to minority firms (Attachment E)." Attachment E is a two-page document titled "Minority Business Certificate." The document first cites the statutory and rule provisions dealing with and defining minority business, and sets forth that "certification information may be obtained by contracting the ... Department of General Services..." The document then continues with the following: Responders shall indicate on the following form if they or proposed subcontractors are small minority businesses as described in Chapter 13- 8.005, F.A.C. and determined by the Department of General Services Office of Minority Business Enterprise Assistance. Copies of certifications should be attached, not to be included in the page count of the response package. Pending certifications should be so-noted. I HEREBY CERTIFY that this business meets the criteria for small, minority business, category ( ) (Signature) (Business Name) (Address) (Address) ATTACHMENT E MINORITY BUSINESS CERTIFICATE Page 2 of 2 I CERTIFY, to the best of my knowledge, the following proposed subcontractor(s) are small minority businesses domiciled in the State of Florida. Subcontractor(s) Subcontract Name and Address business estimate percent of total contract percent of total contract Pages 8 and 9 of Attachment A to Solicitation 8809 set forth the evaluation criteria which Respondent intended to use to select the group of firms which would become eligible to receive contracts. The evaluation criteria were: A.16 Evaluation Criteria General The [Respondent] reserves the right to accept or reject any or all SOQs received and reserves the right to make an award without further dis- cussion. Therefore, the SOQs should be submitted initially in the most favorable form. Nonresponsive SOQs include, but are not limited to, those that: (1) are irregular or not in conformance with the solicitation requirements and instructions; (2) fail to utilize or complete prescribed forms; (3) are conditional, incomplete, indefinite or ambiguous; (4) are intended to accomplish only a portion or por- tions of the overall work; or (5) have improper or undated signa- tures. A nonresponsive SOQ will not be considered. The [Respondent] may waive informa- lities or irregularities in the SOQs received where such are merely a matter of form and not substance, and the corrections of which are not prejudicial to other contractors. Ranking Each SOQ will be reviewed by a technical committee of at least three persons with technical knowledge about petroleum con- tamination site cleanup. Each of the reviewers will work independently using the outline shown in Attachment F. Past performance will be scored based on answers to a standard group of questions received from at least two of the con- tractor's former clients and the [Respondent] if applicable. Only one reviewer will contact any given reference. The [Respondent's] project to be evaluated will be the most recent comprehensive project which is most closely related to petroleum contamination site cleanup. Satisfactory performance for the [Respon- dent] will score no points; but unsatis- factory performance will score negative points. In this way, contractors which have not worked for [Respondent] or which have had satisfactory performance are not penalized. Minority Business Utilization will be evaluated on the percentage of the total contract amount estimated to be awarded to minority business as noted in the contractor's Minority Business Certifi- cate (Attachment E). Each reviewer will use the total point scores to rank the contractors and a mean rank for each contractor will be calculated. The mean rank scores, without accompanying contractor names, will be presented to the chairman of the selection committee who will deter- mine the competitive range. Those contractors in the competitive range will be invited to participate in discussions with the selection committee. Following the discussions the committee will recommend approxi- mately six contractors to the [Respon- dent's] Secretary for contract award. Attachment F to Solicitation 8809 sets forth the scoresheet used by the Respondent's evaluators. A firm could receive a maximum of 132 points from each evaluator. Attachment F provided that a maximum of 13 points could be received for Minority Business Utilization. As set forth in the evaluation criteria, supra, Attachment F provided a maximum score of 0 for Past Performance on a contract with Respondent. Also, Attachment F indicated that "a score of minus 14 can be given for this item" (past performance on a contract with Respondent). Respondent's Evaluation of SOQs Respondent received SOQs from 43 firms in response to Solicitation 8809. Prior to forwarding the SOQs to the members of the Respondent's technical review committee for their evaluation, Ms. Gwenn Godfrey, a Grant Specialist Supervisor II with Respondent's Contract Office and Mr. Douglas A. Jones, Administrator with Respondent's Bureau of Waste Cleanup and chairman of Respondent's Technical Review Committee for Solicitation 8809, counted the pages of each SOQ to determine compliance with the 35-page limitation. On SOQs which exceeded the 35-page limitation, a large "X" was drawn on page 36. The information provided beyond page 35 was not considered by the Technical Review Committee members. Respondent intended that the instructions for Section 7, Minority Business Utilization, would result in contractors submitting information on minority business utilization on Attachment E and including Attachment E within the 35-page SOQ. Upon receiving the SOQs, it became clear that some of the contractors which submitted minority business information had interpreted the instructions differently than intended. Some contractors submitted SOQs which complied with the instructions like Respondent intended. Others, rather than using Attachment E, simply listed the names of the minority businesses they intended to use and the percentage of proposed utilization within Section 7 of their SOQs. Still others included information on minority business in sections of their SOQs other than Section 7. Finally, some contractors, including Petitioner used Attachment E, but did not include it within the 35-page limit. Faced with this, Respondent decided that the different methods of reporting minority business utilization constituted minor irregularities of form and not substance, so long as the information on minority business utilization was provided within the 35-page limit. Contractors which identified the minority business contractors and the percentage of utilization anywhere within the 35- page SOQ were given the same number of points they would have received if they had used Attachment E to provide the information. The Technical Review Committee consisted of five persons and each reviewed the 43 SOQs. Each reviewer ranked the 43 SOQs from 1 to 43, with the firm receiving the most points being ranked number 1. For each firm, the rankings received from the five evaluators were added together and divided by five to produce an overall "mean rank score." The firm with the lowest mean rank score was ranked number 1. The mean rank score and ranking of the top 16 firms were: Mean Rank Score Ranking 2.6 1 2.8 2 3.2 3 3.4 4 3.6 5 6.6 6 7.6 7 8.8 8 11.1 9 11.9 10 12.8 11 13.0 12 14.0 13 14.6 14 15.0 15 16.2 16 By memorandum dated February 5, 1988, Mr. Douglas Jones provided the Respondent's Assistant Secretary with a graph plotting the mean rank score of each firm which submitted a SOQ. The memorandum stated that: Since approximately six contracts will be awarded and a large point difference exists between the eighth and ninth ranked firms..., we recommend inviting the top eight to participate in oral presentations. If time constraints are not severe and more choice is desired, we would recommend inviting the top twelve Although a larger break exists [between the firms ranked 14 and 15] than [between 12 and 13], we feel inviting fourteen firms would be too cumbersome. This recommendation was followed, and the top eight firms were selected as being within the competitive range. Petitioner's SOQ 8809 Petitioner's SOQs in response to Solicitation 8804 and 8809 were prepared under the direction and supervision of Mr. Paul Gruber. Mr. Gruber attended the contractors' meeting held on Solicitation 8804, but did not attend the meeting held in Solicitation 8809. Within the first couple of days after receiving Solicitation 8809, Mr. Gruber and another employee of Respondent each made a page-by-page comparison of Solicitation 8804 and Solicitation 8809 to make sure they understood the differences between the two Solicitations. Mr. Gruber determined that both Solicitations were essentially the same and noted that Attachment E had been changed. He also believed he understood what all the instructions meant. Mr. Gruber decided not to attend the contractor's meeting held in Solicitation 8809, since Solicitation 8804 and Solicitation 8809 were essentially the same and the Solicitation 8809 meeting was not mandatory. He felt comfortable that Petitioner could respond adequately without attending the meeting. Approximately a week before the SOQs had to be submitted to Respondent, Petitioner had prepared a draft of the SOQ. At this point, Mr. Gruber felt that there was some ambiguity in the instructions for Section 6, Past Performance, and Section 7, Minority Business Utilization, of the SOQ, and he was not sure how to present this information. Mr. Gruber was confused with the instructions for Section 7, Minority Business Utilization, because the instructions appeared to provide that Minority Business Utilization was to be included within the 35-page limit. However, the instructions referenced Attachment E, which was titled "Minority Business Certificate", and-among other things, provided that "Copies of certifications should be attached, not to be included in the page amount of the response package." Therefore, Mr. Gruber did-not know whether Attachment E should have been included within the 35 pages or could have been provided outside the 35 pages. Mr. Gruber's confusion about Section 6, Past Performance, was due to information which had been provided by Respondent at the contractors' meeting on Solicitation 8804. At the contractors' meeting a question came up about how to provide information on prior contracts with Respondent. At that meeting, it had been decided that contractors with prior contracts with Respondent only had to identify the project's title and did not have to provide all the other information required for other contracts. However, the written instructions for Section 6 in Solicitation 8809 were identical to those in Solicitation 8804 and indicated that prior contracts with Respondent should be listed in the same manner as any other contracts. Therefore, Mr. Gruber was unsure as to how to include prior contracts with Respondent in the SOQ. In order to get answers to his questions, Mr. Gruber made a telephone call to (904) 487-4831, the telephone number listed on the front page of Solicitation 8809 as being the number where Ms. Gwenn D. Godfrey could be reached. The telephone call was made at 2:18 p.m., on December 1, 1988. Mr. Gruber believes he spoke with Ms. Godfrey, because he asked for her. However, Ms. Godfrey cannot recall speaking with Mr. Gruber or with anyone from Petitioner's company. Mr. Gruber cannot recall if the female person he spoke with identified herself, and it is Ms. Godfrey's practice to identify herself every time she picks up the telephone. Mr. Gruber can remember little of the actual conversation, except for the decisions he made based on the conversation. There is sufficient evidence to support a finding that the telephone conversation took place, but not enough to find that Mr. Gruber spoke with Ms. Godfrey. During the telephone conversation, Mr. Gruber was not specifically told that Attachment E could be outside the 35-page limit; he was told something in the nature of "follow the instructions in the RFSOQ." After further conversation, he came away from the telephone conversation with the general interpretation that placing Attachment E beyond the 35th page was acceptable to Respondent. Mr. Gruber came away from the telephone conversation with less assurance about his questions regarding Section 6, Past Performance, than about the questions regarding Section 7, Minority Business Utilization. While he ended the telephone call without having all his questions answered, he provided his own interpretation of the conversation and prepared the SOQ based on that interpretation. Mr. Gruber's notes from the telephone conversation were as follows: DER Projects - include in page count? List all info separately? Yes MBE Certificate - Follow instructions Attachment "E" not counted. Based on the telephone conversation and his understanding, of the instructions, Mr. Gruber prepared and submitted Petitioner's SOQ listing prior contracts with Respondent on page 36. Page 37 consisted of Attachment E from Solicitation 8804, certifying that one of Petitioner's subcontractors was a small, minority business. Page 38 consisted of page 1 of Attachment E from Solicitation 8809, certifying that another of Petitioner's subcontractors was a small minority business. Page 39 consisted of page 2 of Attachment E to Solicitation 8809 and indicated that each of the two minority business subcontractors would receive 10 percent of the total contract. Respondent's evaluation of Petitioner's SOQ Page 36 of Petitioner's SOQ was marked with a large "x" and with the notation "exceeded page limit." The information on pages 36-39 was not considered. Petitioner was given 1 point for having listed the use of two minority business subcontractors in Section 2 of its SOQ. Petitioner was given minus 14 points for failing to list the prior contracts with Respondent within the SOQ. Respondent ranked Petitioner ninth. If Petitioner's proposed minority business utilization set forth in pages 37-39 of its SOQ had been considered by Respondent, Petitioner would have received an additional 6 points from each evaluator. If Respondent had considered information on minority business utilization provided outside the 35-page limit for all SOQs, the rankings of the top 16 firms would have been as follows: Mean Rank Score Ranking 2.6 1 2.8 2 3.2 3 3.6 4 4.1 5 5.3 6 7.4 7 9.2 8.5 9.2 8.5 12.2 10 12.3 11 13.4 12 13.8 13 15.4 14 16.3 15 16.6 16 The nine firms ranked 1-8.5 are the eight firms, Respondent determined to be within the competitive range, plus Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order finding Petitioner to be within the competitive group. DONE and ORDERED this 29th day of March, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 29th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0996BID The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number Reason for Rejection Accepted. RO7 Irrelevant. Accepted. RO2 Accepted. RO4,5 Accepted. RO2,3 Accepted. RO6 Accepted generally. RO6 Accepted generally. RO6 Irrelevant. Accepted generally. RO10 Accepted RO9, 11, except for the last 13 words which are rejected; how this information was to be submitted is the issue in this case. Accepted. RO13 Accepted. RO13 Generally accepted. RO8 Irrelevant. First sentence is irrelevant. Second sentence accepted. RO23 Accepted. RO27 Accepted generally. RO29 Accepted generally, except that use of the word "contradiction" is rejected; this is a conclusion. RO28 Accepted. RO12 Accepted. RO12 Accepted generally, except that finding that Mr. Gruber spoke with Ms. Godfrey is rejected. RO30, 31 Generally accepted as set forth in RO31-34. Accepted. RO17, 35 Accepted. RO35 Irrelevant. Accepted. RO20 Accepted. RO18 29-33. Supported by the evidence but unnecessary for the decision. First sentence irrelevant; second- sentence accepted. RO16, 36. Rejected. Attachment F clearly stated that a score of minus 14 could be received for this item. See RO16 and Conclusions of Law. Accepted. RO16 Generally accepted. RO20 Generally accepted. RO21 Supported by the evidence, but unnecessary for the decision Generally accepted. RO21 Last phrase accepted. RO37. Rest is irrelevant. Supported by the evidence, but unnecessary for the decision. Irrelevant. Irrelevant. Irrelevant and argumentative. Irrelevant. 47-48. Subordinate to RO39. 49-51. Generally accepted. RO39 Irrelevant. Irrelevant. 54-56. Irrelevant. 57-60. Supported by the evidence, but unnecessary. 61-63. Irrelevant. 64-65. Supported by the evidence, but unnecessary. The Respondent's Proposed Findings of Fact 1-3. Rejected, not a Finding of Fact Second and third sentences generally accepted; first and fourth sentences irrelevant. Generally accepted. RO1 and 2 Accepted. RO2-4 Accepted RO5, 10, 11 Generally accepted. Generally accepted. RO25 First and second sentences accepted. RO6. Third and fourth sentences are irrelevant. Accepted. RO17 and 18 12-13. Supported by the evidence, but unncessary. 14-15. Generally accepted. RO14, 20 16. Generally accepted. RO21. Last sentence is rejected as not a fact. 17-27. Rejected as not being findings of fact; they are arguments, conclusions or recitations of testimony. 28. Generally accepted. RO9 and 10. Last sentence rejected as a conclusion. 29-30. Rejected as argument and conclusion. Generally accepted. RO19 Generally accepted. RO12 Addressed in Conclusion of Law portion of RO. 34-41. ; 43-45, 49-60. Rejected as recitation of testimony. 42. Argument and conclusions. Generally accepted Generally accepted. Last sentence is irrelevant. First sentence accepted. Last sentence rejected to extent it states that a telephone conversation did not take place. Rest of paragraph is irrelevant. Rejected as conclusion and argument. COPIES FURNISHED: Terry Cole, Esquire M. Christopher Bryant, Esquire OERTEL & HOFFMAN, P.A. P. O. Box 6507 Tallahassee, Florida 32314-6507 Gary Early, Esquire Assistant General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Barrett Johnson, Esquire Post Office Box 1308 Tallahassee, Florida 32302 William D. Preston, Esquire Thomas M. DeRose, Esquire Post Office Box 6526 420 First Florida Bank Building Tallahassee, Florida 32314
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, the following facts are found: At all time material to these proceedings, Respondent DiFalco, was employed by Sears Termite and Pest Control (Sears) of Tallahassee, Florida, a licensee as defined in Section 482.021(12), Florida Statues. Although Respondent was an employee of a licensee, Sears, there was no evidence that Respondent was a "certified operator", or an "identification cardholder" or a "special identification cardholder" as defined by Section 482.021(5)(9), Florida Statutes, and Section 482.151, Florida Statutes, respectively. On or about May 31, 1988, Respondent, representing Sears and responding to a request by Dixie Lee Mims (Mims), inspected the residential property of Mims and represented to Mims that her home was infested with subterranean termites and powder post beetles and that control treatment was needed. Subsequently, though Sears, Respondent entered into a contract, number 96232, with Mims for the control of termites at a cost of $875.00 to be paid through Mims' Sears charge account. Respondent advised Mims that the cost for control of the beetles was included in the contract even though such control was omitted in the contract. Subsequent inspection of the Mims' home by an independent pest control firm and by Petitioner's entomologist revealed no visible signs of present or recent infestation of termites or beetles. Roger White, Manager, Sears, based on an additional inspection by Sears worked out a settlement with Mims whereby Mims would be given $500 credit on her Sears charge account and retain her contract with Sears.
Recommendation Upon consideration of the fcregong Findings of Fact and Conclusions of Law, the evidence of record and the demeanor of the witnesses, it is, therefore, RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint filed herein. Respectfully submitted and entered this 16th day of May, 1989 in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1989. COPIES FURNISHED: Anthony T. DiFalco Route 5, Box 215, #3 Tallahassee, Florida 32301 John L. Pearce, Esquire District 2 Legal Office 2639 North Monroe Street Suite 200-A Tallahassee, 32303-4082 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this case is whether Respondents, Hugh H. Warnock and Terminix International Company, L.P. (Terminix), should be administratively disciplined by the Department Of Agriculture and Consumer Services, (Department), because of the matters alleged in the Notice to Impose Fine dated September 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture and Consumer Services was the state agency responsible for the licensing of pest control companies and applicators in Florida. Respondent, Terminix, was licensed as a pest control company and Respondent, Warnock, was licensed as a pest control applicator in Florida, and was employed by Terminix International Company, L.P. On January 22, 1996, Mr. Warnock conducted a termite inspection at property owned by Gordon C. Williamson located at 704 Court Street in Clearwater, at Mr. Williamson’s request. The property was a single story commercial building. Upon completion of his inspection, Mr. Warnock prepared and issued to the owner a wood-destroying organisms inspection report on which he certified he had inspected the premises, except for the attic which was inaccessible. Mr. Warnock noted that he found no visible evidence of wood destroying organisms, no evidence of visible damage and no visible evidence of previous treatment. He noted, however, that in January 1988, the premises previously had been treated for dry wood termites. As a matter of record, the January 1988 inspection and treatment was conducted by ARAB Pest control which, since that time, had been taken over by Terminix. Mr. Warnock qualified his inspection report by the comment, “This report is based on what was visible to me at the time of inspection.” The purpose of a wood destroying organism report is to note existing or present activity of wood destroying organisms, or damage done as a result of that activity. Most frequently, the inspection is done for buyers of property or those who are lenders to those who buy, though quite often owners of property have it done as a part of or in preparation for a treatment program to protect against the organisms. On the visit in issue, Mr. Warnock did the inspection by himself. Having seen vents in the lower portion of the outer wall on his way up to the property, he thought there might be an air space, not necessarily a crawl space, under the floor. After speaking with the owner, and telling him what was intended, Warnock started his inspection at the north end of the building where he found sheet rock against the walls and a dropped ceiling. This particular area was one where old furniture was stored. Mr. Warnock went from area to area in the building, and was able to do his inspection better in some places than in others because of the clutter inside. He also inspected around the outside of the building, after which he went to ask Mr. Williamson how he could get to the space beneath the floor in the center of the building. In response, according to Respondent, Mr. Williamson said he didn’t know of any access to that area and suggested Warnock ask someone else. With that, Warnock inquired of the other individual working in the building, who, Warnock asserts, also said he didn’t know of an access. Though Warnock claims he looked as best he could throughout those portions of the building accessible to him, because of sawdust and lumber on the floor, and the wood working machinery there, he could not see any access ports. It was subsequently determined that there are three crawl spaces located under the north part of the building which are separated by concrete footings. These spaces are accessible through access ports in the floor above them. Mr. Warnock definitively states that had he known of any access ports to the crawl space, he would have gone down into it to look for damage or organisms. It is so found. Mr. Warnock takes exception to the photographs introduced by the Department, taken by Mr. Caudill several months after his initial visit, contending they do not accurately reflect the conditions he encountered during his January 1996 visit. The major difference is that at that time, sawdust and machinery covered the floor access panels that appear unencumbered in the pictures, and they were not visible to him when he looked. Admittedly, he did not ask that any of the equipment or wood be moved or that the sawdust be swept away. Subsequent to Warnock’s inspection, Mr. Williamson called the Terminix office and advised he had discovered damage at the north end of the building. This damage was found by Warnock on a return visit to be behind the drywall previously mentioned, and was determined to have been caused by drywall as opposed to subterranean termites. The treatment done under the contract with ARAB in 1988 was for drywall termites, and there was no contract to treat for subterranean termites. On the second visit Warnock again asked Mr. Williamson about any access ports, and, according to Respondent, Williamson again denied knowing of any. A second inquiry of the other gentleman on the premises met with the same response again, but on this occasion, when he looked down at the floor, Warnock saw an access hole in the floor, and when asked directly about it, the man admitted he had cut it into the floor about two years previously. Warnock claims that when he asked if there were other holes, the man said there were not, but this individual did not appear or present testimony at hearing. The hole was no more than a series of cuts across the floor boards between the floor joists which, since there was no handle, were removed one at a time by being pried up. When Respondent and his assistant manager, who was present with him on this visit, got down into the crawl space, they found no evidence of infestation. At that time, the other access holes subsequently found to exist were not known to be there. Respondent steadfastly contends that none of the access holes were visible to him or pointed out to him on inquiry of the occupants at the time of his January 1996 visit. As such, he claims, they were not accessible to him at that time. It was only after the second visit my Mr. Warnock that on June 4, 1996, Williamson submitted his complaint to the Department. In response, on June 7, 1996, Todd Caudill, a pest control environmentalist with the Department, went to the site and re-inspected it. During his inspection, done some six months after Warnock’s initial visit, Mr. Caudill found termite tubes and other evidence of infestation in the crawl space under the building when he went into it. He took photographs of what he saw. Mr. Caudill is 5’11’ tall and weighs about 260 pounds. Notwithstanding, he had no trouble getting down into the crawl space through the existing access holes. Mr. Caudill could easily see the termite tubes, and in his opinion, they were there before Warnock’s January 1996 inspection of the property. He bases this opinion on the dryness of the tubes, the lack of active termites there, and the extent of the damage existing. He could look up into the rafter area because the ceiling had been removed due to renovation, but could see no termite activity there. Mr. Caudill returned to the property for a second visit on June 25, 1996, at which time he took additional photographs. This second series of pictures included the second crawl space, on the East side of the building, and several additional access holes in the floor of the building. Mr. Caudill indicates that when he asked about additional access holes, he was directed to a portion of the building where, when he went there, he was able easily to find the portals without having them pointed out to him. He could not see where any of the access portals had been covered by machinery nor did it appear to him that any of the machinery recently had been moved. The machinery was not so big that it would cause a major obstruction. It was on this second that Mr. Caudill procured an affidavit from Mr. Williamson which indicates that when Mr. Warnock was there for his inspection, the access ports were not obstructed and had not been obstructed for the six years the tenant has occupied the space. Mr. Williamson was not present at the hearing to testify in person nor was his absence explained by counsel for the Department. No explanation was given by the Department as to why Williamson could not be present or his testimony preserved by deposition. Therefore, it is found that Mr. Williamson’s affidavit is inadmissible as hearsay evidence and is not considered. In Mr. Caudill’s opinion, Warnock’s report of his inspection of the Williamson property in January 1996 is not a complete report since it did not cover the area of the crawl space. Based on his investigation of the situation, Mr. Caudill recommended a fine of $500.00, after which, on September 10, 1996, the Department issued its Notice of Intent on which the alleged violations found are listed. At the time Mr. Caudill did his investigation of Mr. Warnock’s inspection, he had been employed by the Department less than a year. He is not licensed as a pest control operator, but had been trained in the classroom and in on the job training with other operators, and had done three inspections on his own. According to Mr. Chandler, the Terminix branch manager who went with Mr. Warnock to the Williamson property in May 1996 as a result of Mr. Williamson’s call, termite damage was discovered in the walls of the building when the covering was removed for repairs and renovation. Williamson seemed to feel that this area had been missed by Respondent when he was there in January. In response, Mr. Chandler supported Respondent, indicating the damage, as it existed and where it was, could not have been found by Respondent’s inspection. He offered to put in place a new treatment plan. Whether Mr. Chandler also spoke with Mr. Williamson about access holes is questionable. On one hand, Chandler said he did speak with him about them, yet at another point in his testimony, he could not recall asking Williamson about access ports. When the ports were discovered and opened, and Chandler went down into the crawl space, he found no evidence of infestation in that crawl space. The only evidence of termite damage observed by Chandler did not extend up from the crawl space, but existed in a beam which rested on a concrete slab in the area opened for renovation. Dr. John Mangold has worked in the pest control industry for seventeen years and is familiar with the laws and rules relating to wood destroying organism reports. To his understanding, equipment on the floor of a building renders the area underneath it inaccessible, and an inspector cannot deface an area in order to do an inspection. The inspection report done in 1988 reflects that a crawl space was not inspected at that time because it was N/A. Counsel agree this means “not accessible.” The second report, done by Mr. Warnock, is consistent with the former in that it also reflects the crawl space was not inspected because it was inaccessible. Since the vents on the side of the exterior wall, near the ground give rise to a presumption there is a crawl space there, if the inspector cannot find access ports, he should note that fact in the report and indicate why he could not get to it. Though Respondent did not do this, it does not invalidate a finding that at the time of his inspection, the crawl space was not reasonably accessible to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing its Notice of Intent to Impose Fine. DONE and ENTERED this 23rd day of May, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Linton B. Eason, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire 1815 South Patrick Drive Indian Harbour Beach, Florida 32937 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810
Findings Of Fact Respondent is a licensed dentist in the State of Florida, holding license number DN0011363. He has been licensed in Florida since 1987. In June 1992, Respondent divided his time between an office in Homosassa and an office in Inverness. He had purchased a dentistry practice in Inverness, as part of which he had obtained a considerable amount of dentistry equipment. It appears that he practiced on his own in both locations. In June 1992, Respondent spent 1-2 days a week in Homosassa and the rest of the time in Inverness. About half of Respondent's practice involved Medicaid patients. Respondent's wife served as office manager. On June 18, 1992, two of Petitioner's investigators and an independent consultant made an unannounced visit to Respondent's dentist office in Homosassa. The purpose of the visit was to inspect Respondent's office. On June 18, Respondent, his wife, and ten-month old child were on vacation out of the country. The trip organizer had offered Respondent a last- minute opportunity to take the vacation at a reduced price. With little chance to make arrangements, Respondent had a friend come to the office to answer the phone while Respondent and his family were gone. Respondent and his family packed the car and left directly from the office. The person whom Respondent had left to answer the phone met Petitioner's representatives and, at their request, allowed them to inspect the office. The condition of the office, as inspected on June 18, 1992, is the subject of the present proceeding. The Homosassa office was not in operation at the time of the inspection. Respondent had been gone for at least several days before the inspection, and he remained absent for some time following the inspection. No one was seeing patients at the office on June 18, or immediately before or after that date. Further, following his return, Respondent intended to repair some equipment before the Homosassa office would return to operational status. There was a musty odor in the office on June 18. However, the office had been closed and largely unoccupied for several days, so it is possible that the odor began only after Respondent had left. The ultimate source of the odor had been a faulty electronic solenoid that had allowed a vacuum line to flood the office three or four times. Respondent had solved the problem by replacing the solenoid with a manual valve. Parts of the carpeting that ran through the office were discolored. However, there is no evidence that the carpeting was unsanitary or unhealthy. The carpeting was vacuumed whenever the office was open for business. Respondent's infant normally stayed at the office with Respondent and his wife. The infant's playpen was kept in a snack area containing a table and chairs, refrigerator, and microwave. This area was clean when Respondent left. But the person who was answering the phone had brought her child into the office and the food debris present on June 18 was due to the mother and her child. At the time of the inspection, various handpieces, which are drills, and air/water syringes were found on a counter. The handpieces and metal tips for the syringes are autoclavable. An autoclave is a device that, by heat or chemical action, kills bacteria and viruses in order to sterilize an instrument. At all times, Respondent had a working autoclave in his office and used in appropriately. Due to the suddenness of his departure, coupled with the fact that Respondent had left himself ample time on his return to reset up his office, Respondent had left several handpieces and metal-tipped syringes out on the counter, rather than autoclaving them and placing them in autoclave bags. Similarly, Respondent had left x-ray rings, which are used to position the x-ray relative to the film, and related equipment in disinfectant. He intended to autoclave all of these items, as well as change the disinfectant, prior to reopening for business. A large number of scalers, which scrape plaque from teeth, were in drawers at the time of the inspection. These scalers were not in autoclave bags. However, these were surplus scalers that Respondent had been required to purchase when he purchased the practice. These scalers, which were worn and dull, were not used as scalers, but were now for various mechanical tasks, for which they are well-suited. Like awls or screwdrivers, the unbagged scalers did not come into contact with patients. Open cardboard boxes containing cotton rolls and sponges were present in the office at the time of the inspection. However, such items are delivered in this manner and are not maintained in sterile condition prior to receipt by the dentist. There is no problem leaving such items in the cardboard box until they are stored somewhere else. Respondent always used an appropriate surface disinfectant. An alcohol dispenser was present at the time of the inspection because Respondent used alcohol for purposes other than to disinfect surfaces. For instance, he used alcohol for removing cement from instruments and making surfaces non- sticky. Respondent maintained a log for the autoclave. The log was nearby the autoclave, although not beside it. There is no evidence that the log was inadequately maintained.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Dentistry dismiss the Amended Administrative Complaint. ENTERED on January 25, 1994, 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 on January 25, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2794 Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3-5: rejected as irrelevant. 6: adopted or adopted in substance. 7: to the extent contrary to the findings of fact, rejected as unsupported by the appropriate weight of the evidence. 8-11: rejected as recitation of evidence. 12: rejected as unsupported by the appropriate weight of the evidence. 13-15: rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-3 (except last two sentences): adopted or adopted in substance. 3 (last two sentences): rejected as irrelevant. 4-6 (except last sentence): adopted or adopted in substance. 6 (last sentence)-7: rejected as irrelevant. 8-9: adopted or adopted in substance. 10: rejected as subordinate. 11-16: adopted or adopted in substance. 17-18: rejected as subordinate. 19-38: adopted or adopted in substance. 39-42: rejected as subordinate. COPIES FURNISHED: William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 J. Ashley Peacock, Staff Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael K. Blazicek Stephens, Lynn, Klein & McNicholas, P.A. 4350 West Cypress Street, Suite 700 Tampa, Florida 33607
