Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Petitioner Richard W. Gardner was an employee of Pestagon Termite and Pest Management, Inc. and the holder of an identification card issued by the Department in accordance with Section 482.091, Florida Statutes, which authorized Petitioner to perform inspections of structures for wood-destroying organisms. Petitioner has been an identification cardholder for approximately six and one-half years and during that time has received special training in the detection and control of wood-destroying organisms. In accordance with instructions from his employer, Pestagon, Petitioner performed an inspection for wood-destroying organisms of a residence located at 1550 Wilson Road, Sarasota, Florida on February 16, 1993. The inspection was made at the request of the realtor in connections with the sale of the residence where the termite inspection was a condition to the closing of the sale. After completing his inspection of the premises for wood-destroying organisms, Petitioner issued a Wood-Destroying Organisms Inspection Report in accordance with Section 482.226, Florida Statutes, and Rule 5E-14.142(2)(c), Florida Administrative Code. Petitioner's report was what is commonly referred to as a "clean report", i.e. showing no evidence of wood-destroying organisms, no visible damage and no evidence of previous treatment. Ronald P. Forshee, purchaser in the real estate transaction, relied on Petitioner's report, among other things, and purchased the residence. Sometime around mid-February, 1994, Forshee encountered swarming termites in several rooms in his residence. Several pest control companies, including Pestagon, inspected the residence and confirmed that there was a termite infestation. None of the pest control companies who inspected the residence gave a definite time period when the termites may have first infested the Forshee residence. On March 6, 1994, Forshee filed a complaint against the Petitioner with the Department. In response to the complaint filed by Forshee, Thane Beehler, inspector for the Department, inspected the residence on April 15, 1994, and May 19, 1994, and discovered evidence of subterranean termites. Beehler found visible signs (mud tunnels) of termite infestation by looking through a vent to the underside of the residence. The vent would have been accessible to Petitioner at the time of his inspection of the Forshee residence on February 16, 1993. Beehler's size prevented him from crawling throughout the underside of the residence without some excavation because of a low floor joist. Although Beehler did not find any visible evidence of termites in the area where he crawled, a distance of 20 - 25 feet, he was able to see mud tunnels, both in use and abandoned, beyond where he crawled. In order to get photographs of the termite infestation beyond where Beehler crawled, and not require excavation, Forshee crawled under the floor joist and took photographs with Beehler's camera. This area was accessible to Petitioner on February 16, 1993, when he made his inspection of the Forshee residence. While there is insufficient evidence to establish the exact time the Forshee residence was infected with subterranean termites, there is sufficient evidence to show that the termite infestation observed by Beehler at the time of his inspection of the Forshee residence on April 15, 1994, and May 19, 1994, had been present at the Forshee residence no less than three to five years. There is sufficient evidence to show that the termite infestation observed by Beehler at the Forshee residence on April 15, 1994, and May 19, 1994, existed, and was visible from areas accessible to Petitioner, at the time Petitioner made his inspection of the Forshee residence on February 16, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding Petitioner guilty of violating Section 482.161(1)(f), Florida Statutes. It is further recommended, after considering Section 482.161(7), Florida Statutes, that for such violation Petitioner be required to pay an administrative fine of $500. DONE AND ENTERED this 23rd day of May, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6975 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Petitioner's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); and 5-6(6). The first four sentences of proposed finding of fact 7 are adopted in Findings of Fact 8-10. The balance of proposed finding of fact 7 are rejected as not being supported by evidence in the record. The first two sentences of proposed finding of fact 8 is adopted in Finding of Fact 3. The balance of proposed finding of fact 8 is rejected as not being supported by evidence in the record. Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-4(1-4,respectively); 5(5,6);and 7(8-12). The first two sentences of proposed finding of fact 6 is neither material nor relevant. The balance of proposed finding of fact 6 is adopted in Finding of Fact 7. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Gary M. Glassman, Esquire 2100 South Tamiami Trail Sarasota, Florida 34239 Robert F. Worley, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issues are whether Respondent violated various provisions of law governing the operation of restaurants and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates the restaurant known as Middle East Connections, which is located inside a shopping mall at 19575 Biscayne Boulevard in Aventura, Florida. This restaurant is part of the food court inside the mall. Petitioner's inspector conducted inspections of the restaurant on July 23, October 18, and October 29, 2001. These inspections revealed numerous violations. The inspection on October 29, 2001, identified that Respondent was holding hot gyro meat at a temperature that was at least 30 degrees cooler than the minimum temperature required for this meat. Additionally, Respondent was maintaining the steam table at too low a temperature; thus, chicken was at a dangerously cool temperature of 103 degrees Fahrenheit. The October 29 inspection also revealed dried food debris on the gaskets of the reach-in coolers. The risk of this violation is that food handlers may be obtaining ready-to-eat food, which may become contaminated if the food handlers touch dirty cooler gaskets. The October 29 inspection also uncovered dried food debris on the dish shelves and grease on the hood filters. Dried food debris poses a contamination risk, and greasy hood filters pose a fire hazard. Respondent's first defense is that its principal did not acquire the restaurant from its former operator until February 11, 2002. However, Respondent's principal initiated a license transfer in August 2001. Petitioner promptly transferred the license. Petitioner's policy is not to issue two licenses for the same location, so that, if Respondent were to prevail on this argument, the restaurant would have been unlicensed during the time of these violations due to the action of Respondent's principal in initiating a transfer of the license. The documentation of the transaction between the current and former operators states that the change in ownership took place on July 1, 2001, and the inspector saw Respondent's principal at the restaurant after the license transfer. Respondent's second defense is that it has corrected all violations and is operating the restaurant in compliance with the law. This claim is credited, although it operates more in mitigation than as a defense.
Recommendation RECOMMENDED that the Division of Hotels and Restaurants enter a final order imposing a $2000 fine upon such terms as the Director determines are appropriate. DONE AND ENTERED this 5th day of November, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 5th day of November, 2002. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Charles F. Tunnicliff Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tony Kalach 19575 Biscayne Boulevard, #1373 Aventura, Florida 33180
The Issue On or about November 18, 1992, the Petitioner, the Department of Agriculture and Consumer Services, filed a five-count Administrative Complaint against the Respondent, Anthony W. Rhea, Dept. of Agriculture Case No. 92-1427, alleging essentially that, on or about July 17, 1991, the Respondent made an inspection of a residential structure for wood-destroying organisms and failed to report visible and accessible evidence of wood-destroying organisms and damage caused by them, in violation of Section 482.226(1) and (2), Fla. Stat. (1991). The Administrative Complaint also alleges that the Respondent used an obsolete report form, in violation of F.A.C. Rule 10D-55.142(2)(c), 1/ and that the Respondent was negligent, in violation of Section 482.161(1)(f), Fla. Stat. (1991).
Findings Of Fact The Respondent, Anthony W. Rhea, is an employee of Ace Professional Pest Control, Inc. He is part of the company's inspections sales staff. He has been in the inspection business for 15 years and previously has not been the subject of disciplinary proceedings. On or about July 17, 1991, the Respondent inspected a residence at 501 Poinsettia Road, Belleair, Florida. His report of inspection was made on the May, 1983, HRS Form 1145. 2/ His report of inspection noted that the tub trap and remote attic areas were not inspected because they were inaccessible but that inspection of the rest of the house revealed no visible evidence of wood- destroying organisms, no live wood-destroying organisms, no visible damage, and no visible evidence of previous treatment. The Respondent did not recommend treatment. It is found that, at the time of the Respondent's inspection, there was no live infestation, but there was clearly visible and accessible evidence of: (1) subterranean termites, and the damage caused by them, in the garage above the master bedroom of the house and in the garage rafters; (2) drywood termites in the attic around an old chimney stack; and (3) previous treatment. 3/ It is found that the Respondent was negligent in the performance of the inspection and in the completion of the inspection report form. In part in reliance on the Respondent's inspection and report, the current owner bought the house at 501 Poinsettia Road. It has cost him between approximately $7,000 and $8,000 to repair the damage discovered in October, 1991. Liability insurance coverage maintained by the Respondent's employer has paid for the repairs. Neither the insurance company nor the Respondent's employer has agreed to pay for treating the house, or for the removal and replacement of plants and shrubs that will be killed during tent fumigation of the residence, in the event tent fumigation is required. These additional items will cost the homeowner approximately $4,000. The Respondent was not aware of the additional items referred to in the preceding paragraph until hearing the homeowner's testimony at final hearing. He thought the homeowner was satisfied by the insurance benefits that were paid. The HRS October, 1989, Form 1145 became effective October 25, 1990. Active enforcement began on January 1, 1991. The Respondent's company continued to use the obsolete form at least through July 17, 1991, because it incorrectly understood that, when HRS gave it permission to deplete its current stock of WDO inspection/treatment notices and contracts, it also was giving it permission to deplete its current stock of May, 1983, Form 1145s. The only difference between the May, 1983, and October, 1989, Form 1145 was that the earlier form specified that WDOs included "wood-boring beetles, wood-boring wasps and carpenter bees," while the later form instead specified only "oldhouse borers."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Agriculture enter a final order (1) finding the Respondent guilty of violating Section 482.226(1) and (2), Fla. Stat. (1991), and F.A.C. Rule 5E-14.142(2)(c), and therefore Section 482.161(1)(a), Fla. Stat. (1991), and also guilty of violating Section 482.161(1)(f), Fla. Stat. (1991); and (2) imposing a $500 administrative fine on the Respondent. RECOMMENDED this 26th day of May, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1993.
The Issue This is a license discipline case in which the Department of Health and Rehabilitative Services seeks to impose an administrative fine in the amount of $350.00 on the basis of allegations that the Respondent, failed to report visible and accessible evidence of dry wood termite fecal pellets.
Findings Of Fact At all times material to this case, the Respondent, James M. Dodds has been licensed to conduct residential termite inspections. On June 12, 1990, he conducted a termite inspection at the residence of a Mrs. Mitchell, located at 7420 W. 15 Court, Hialeah, Florida. During the course of that inspection, Dodds did not inspect the attic of the residence. The reason he did not inspect the attic was because the access to the attic (which was through a crawlspace in the ceiling of a small bedroom closet) was blocked by a large number of boxes stacked in the closet. During the course of the inspection Dodds told the owner of the house that unless she arranged to move all the boxes out of the way, he would have to indicate on his report that the attic was not inspected. The owner did not arrange to get the boxes moved and Dodds did not inspect the attic. At the conclusion of his inspection of the property described above, Dodds filled out an inspection report form and left a copy of the inspection report with the property owner. Dodds placed some check marks in some preprinted boxes on the back of the inspection report form. Those check marks included one that indicated "attic not available for inspection." Shortly thereafter, the house was sold to a new owner who, shortly after moving in, discovered what appeared to him to be evidence of possible termite infestation. Subsequent inspections of the premises by another pest control company and by an inspector of the Department of Health and Rehabilitative Services revealed the presence of fecal pellets left behind by dry wood termites. The termite fecal pellets were discovered in the attic near the crawl space opening. There was no other evidence of the presence of termites. No live termites were seen on either of the follow-up inspections.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a final order in this case dismissing all charges against the Respondent, James M. Dodds. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 11th day of March, 1991. MICHAEL M. PARRISH, 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 11th day of March, 1991. COPIES FURNISHED: Martha F. Barrera, Esquire, Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Mr. James M. Dodds Creative Construction Services, Inc. P. O. Box 38-1996, Miami, Florida 33138 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact SJRWMD caused "Request for Qualifications No. 91H157" to be published in the Jacksonville Business Journal on May 3 through 9, 1991. In part, the request stated: Interested firms shall submit a letter of interest (three (3) copies) which contains, but is not limited to, the following: Experience in assessing the environmental fate of pollutants. Familiarity with current and historical agricultural practices employed by vegetable farms in Florida. In particular, knowledge of the storage and application of pesticides and herbicides is required. Ability to perform environmental chemistry and to assess the toxicological, chemical, and physical properties of hazardous materials. Ability to evaluate and/or develop site monitoring plans, industrial hygiene plans, site safety plans, decontamination plans, remediation plans, and abatement measures. Experience in performing environmental audits at potential hazardous waste sites. Staff must have the OSHA required 40 hours Hazardous Waste Site Safety Training pursuant to 29 CFE 1910.120. Documentation of experience in sampling of surface water, ground water, soil, sediment, including installation of temporary and permanent wells and split-spoon borings while following current state and federal approved procedures, and must be capable of preparing and implementing a quality assurance project plan specific to each site assessment. At least $5,000,000 of professional liability insurance. Evaluation of submitted letters of interest will be pursuant to Section 287.055, Florida Statutes. Contracts shall be negotiated pursuant to provisions of Section 287.055, Florida Statutes. Petitioner's Exhibit No. 1. Halff, Jammal and Geraghty & Miller, Inc. (G & M) among others, responded to the request for qualifications with letters of interest. SJRWMD staff evaluated the letters of interest and ranked the respondents in order: Halff was first; Jammal was second; and G & M was third. Staff recommended beginning negotiations with Halff. After tabling the matter at the first Board meeting at which it came up, the Board discussed the staff recommendation on August 14, 1991, and, it seemed from a tape recording of the meeting in evidence, was unfavorably impressed with the fact that Halff had only one full-time employee in Florida, Robert Barnard. (Three other people are in petitioner's Jacksonville office on "a sub-contract basis." T.50.) Mr. Barnard, who would have had charge of the work for SJRWMD if Halff had been chosen, spoke at the Board meeting. He came up to the podium and answered questions, but did not make a formal presentation. No other contender was represented at the Board meeting. As far as the evidence shows, each Board member had read all letters of intent carefully: The record is silent on the point. The Board voted to rerank Jammal and Halff first and second, respectively, and directed staff to begin negotiations with Jammal.
Recommendation It is, accordingly, recommended that SJRWMD proceed with negotiations with Jammal, Halff and G & M in that order. RECOMMENDED this 4th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 4th day of March, 1992. COPIES FURNISHED: William Lon Allworth, Esquire 1301 Gulf Life Drive, Suite 200 Jacksonville, FL 32207 John W. Williams, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Wayne Flowers, Executive Director St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated January 9, 1992; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent performed an inspection for wood-destroying organisms for property located at 907 Magnolia Avenue, Sanford, Florida (907 Magnolia). That inspection was completed on or about May 23, 1991. The inspection form utilized by Respondent was valid in 1983 but has not been in use since 1989. The inspection form reported there were no visible evidences of wood- destroying organisms; that there were no live wood-destroying organisms; that there was no visible damage; and that there was no visible evidence of previous treatment. The report completed by Respondent for 907 Magnolia was false, incomplete and erroneous. When 907 Magnolia was inspected by Mr. Lemont on October 3, 1991, numerous evidences of wood-destroying organisms (both live and remnant) were observed. Such organisms or the evidences of their presence would have been present when Respondent inspected the property. Some of the damage observed by Mr. Lemont would have taken months or years to have developed. Respondent failed to detect and disclose the following information on the inspection he performed: drywood termite damage; wood-decay fungus; subterranean termite and powder post beetle damage.
Recommendation Based on the foregoing, it is recommended that the Department of Health and Rehabilitative Services enter a final order finding the Respondent guilty of violating Sections 482.161 and 482.226, Florida Statutes, and imposing an administrative fine in the amount of $1500.00. RECOMMENDED this 6th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 6th day of July, 1992. COPIES FURNISHED: Sonia Nieves Burton District 7 Legal Office Department of Health and Rehabilitative Services South Tower, Suite S827 400 West Robinson Street Orlando, Florida 32801 Gregory W. Lea 252 S. Country Club Drive Lake Mary, Florida 32746 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue This matter arose on Petitioner's Notice to Show Cause issued against Respondent's food service license. The Notice to Show Cause alleges violations of cleanliness requirements and failure to display license. The parties did not submit proposed findings of fact.
Findings Of Fact Respondent holds a food service license issued by the Division of Hotels and Restaurants, Department of Business Regulation. The licensed establishment is located at 714 W. Ashley Street, Jacksonville, Florida. Petitioner's investigator inspected the licensed premises on March 9, 1983. A current license was not displayed and could not be produced by the manager. Petitioner's March 9, 1983, investigation also revealed that roaches and rats had infested the premises. Vermin tracks and feces were found at or near entrance and exit holes. Respondent had not sealed these access holes nor taken other measures to eliminate the vermin. The storage room, located next to the food service area, contained empty boxes and broken furniture. Petitioner considers these items objectionable since they provide hiding or breeding places for vermin. The restroom provided for patrons had not been cleaned and the toilet seat was broken. Additionally, water on the restroom floor indicated a leak in the plumbing. Petitioner's inspection report, which set forth the above described deficiencies, was given to Respondent's manager on March 9, 1983, at the conclusion of the inspection. Petitioner conducted a follow-up inspection on March 16, 1983, but none of the deficiencies had been corrected. Petitioner conducted a second follow-up inspection on April 12, 1983, and found that corrective measures were in progress but not completed. At the hearing, Petitioner agreed to conduct a further follow-up inspection in conjunction with the local health inspection agency. A status report was to be submitted to the Hearing Officer as a late filed exhibit due October13, 1983, describing any uncorrected deficiencies. This report was not filed.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Rules 7C-1.02, 7C-1.03 and 10D-13.27, F.A.C., as charged; finding Respondent `not guilty of violating Rule 10D-13.28, F.A.C., and, fining Respondent $200. DONE and ENTERED this 10th day of November, 1983, 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 10th day of November, 1983. COPIES FURNISHED: James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Albert P. Singletary 2912 Bethel Court Jacksonville, Florida 32207 Sherman S. Winn, Director Division of Hotels and Restaurants DePartment of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
