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
Findings Of Fact At all times pertinent to this proceeding, Respondent, Wayne Cassity, was a certified building contractor having been issued license C-6620. Respondent was the qualifying contractor for Cassity Construction, 5000 Rena Street North, St. Petersburg, Florida. On or about December 19, 1995, Respondent contracted with Mr. and Mrs. Ralph Thomas to build an addition to the back of their home located at 1537 Carson Circle Northeast, St. Petersburg, Florida. The contract provided that the construction project was to be completed in forty (40) working days, or about two months. The contract was later modified by agreement of the parties on January 26, 1995. Except for an increase in the cost of the project, the amended contract was substantially the same as the original contract. Under the terms of the modified agreement, the cost increased from $14,400.00 to $15,900.00 The increased cost resulted from changes in the plans that were necessary to comply with certain FEMA regulations. Under the terms of the agreement, payment for the work performed was to be made at various intervals during the construction project. The contract required that Mr. and Mrs. Thomas pay Respondent $3,300.00 upon execution of the contract; $5,040.00 after masonry work was completed; $5,040.00 after completion of framing; and $2,520.00 upon completion of the contract. In regard to Respondent's obligations, the contract provided in pertinent part the following: Furnish drawing to owner for approval. Obtain a building permit from the City of St. Petersburg. Remove and dispose of existing grass where the new addition is to be built. Remove and dispose of existing walls in spare room on east side of the new addition. Remove and dispose of existing 12'-0" sliding glass door. Furnish and install all material to con- struct a new concrete slab, approximately 19'-0' x 12' -0' made up of 3000 PSI con- crete, 16" x 16" footing with two no. 5 rebar continuous and 4" thick slab with 6" x 6" x 10 wire mesh on 6 mil visqueen. Furnish and install all material to con- struct exterior block wall for new addition Furnish and install all material to con- struct a new roof over new addition made up of 2" X 8" rafters 24" on center with 3/3" plywood. Overhangs to match existing house as close as possible. Furnish and install 90 lb. torch down roll roofing, for new room of new addition. (Entire flat room) Frame interior walls of new addition. Apply 1/2" drywall to interior of all walls and prepare for paint. Install electricity to new addition to include seven receptacles, four light switches and three overhead lights. Install rough plumbing for new bath to supply shower, toilet and sink. Install two new A/C ducts to new addi- tion tapping into existing trunk line. Under the terms of the contract, Mr. and Mrs. Thomas were to supply and install the following: toilet; sink; vanity; all doors; base trim; door trim; interior paint; exterior paint; carpet; bath floor tile; shower fixtures, exterior stucco; and exterior soffit. Notwithstanding the written contract terms, at some point prior to completing the project, the parties verbally agreed that the owners, not Respondent, would remove and dispose of the existing walls in the spare room and the sliding glass door. Additionally, the parties verbally agreed to reduce the price to be paid under the contract from $15,900.00 to $15,780.00. Although the written contract provided for increases and reductions pursuant to authorized change orders, no evidence was presented regarding the specific reason for the decrease in the construction cost. The Pinellas County Building Office issued the building permit to Respondent on December 18, 1994 and Respondent began work on the Thomas' project several days later. The Pinellas County Building Code requires contractors to call for inspection at various intervals during construction. This allows any code violations to be identified and corrected prior to completion of a given project. Although contractors are required to call for inspections, building inspectors sometimes make unrequested inspections. On January 10, 1995, an initial unrequested inspection was made of the Thomas construction project. Respondent's slab/footer work on the project was rejected by the inspector because it did not meet FEMA requirements. Another unrequested inspection was made by a Pinellas County inspector on January 25, 1995, and again the footer work was rejected. Respondent called for an inspection of the project on January 29, 1995. Pursuant to Respondent's request, an inspection of the work was made on February 17, 1995, by a Pinellas County building inspector. At the time of the February inspection, the footer work was in progress but not yet complete. Two or three days later, after the footer and slab were completed, the work passed inspection. The Thomas' made the first three payments to Respondent in accordance with the terms of the contract, but never made the final payment. On December 28, 1994, Respondent was paid $3,300.00 by Mr. and Mrs. Thomas. The second and third payments of $5,040.00 each were made on January 26, 1995 and February 10, 1995, respectively. The total payment paid to Respondent by the Thomas' was $13,380.00, and represents 85 percent of the total contract price. The percentage corresponds to the 85 percent of work completed by Respondent on the Thomas construction project. On March 28, 1995, Mr. and Mrs. Thomas notified Respondent in writing of their general dissatisfaction with his work. Specifically, the owners expressed a concern that Respondent had failed to complete his designated responsibilities under the contract. Mr. and Mrs. Thomas further indicated that Respondent failed to do a quality job. While several items were of concern to the owners, their primary concern was that the floor level of the new addition was not even with the existing structure. In order to placate the owners, Respondent agreed to return to the Thomas' home and perform the work which the Thomas' believed should have been done by Respondent. Respondent's attempts to comply with the Thomas' request were unsuccessful and attempts to satisfy the owners were futile. Despite the owners' personal dissatisfaction with Respondent's work, no competent and substantial evidence was presented regarding whether the actual work completed by Respondent was consistent with the approved plans and the actual contract. The contract between Respondent and Mr. and Mrs. Thomas contained a dispute resolution clause. According to that provision, "all disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association." Mr. and Mrs. Thomas have failed to utilize the dispute resolution method prescribed in the contract. An investigative inspection was performed by a Pinellas County inspector on March 19, 1996, approximately one year after Respondent initially completed his work on the Thomas home. Typically, three types of inspections are conducted: construction, electrical, and roofing. However, the March 19, 1996 inspection was limited to a construction inspection, and did not include a roofing or electrical inspection. The construction inspection revealed three code violations: the framing for the roof was improperly anchored; the air flow duct was blocked by the insulation; and the window frames were not sealed. The Code violations discovered as a result of the March 19, 1996, inspection were not included in the Administrative Complaint filed against Respondent. On or about March 24, 1995, Respondent entered into a contract with B. G. Diehl to convert an apartment building to an Assisted Living Facility. The first payment under the contract was made on or about March 28, 1995. Work on the remodeling project began on March 28, 1995, although the permit was not obtained until the first week of May 1995. Respondent's failure to obtain the building permit was based on his belief that Ms. Diehl had verbal assurance from county or city officials that prior problems with permitting for this project had been resolved and that the permit would be issued. The Pinellas County Building Code requires that building permits be obtained by contractors prior to beginning a project. This requirement is directed to licensed contractors, and it is the responsibility of the contractor, not the property owner, to ensure that proper permits were obtained prior to beginning the Diehl construction project. The contract provided that the job would be complete on August 15, 1995, and also included a "time is of the essence" provision. The work was substantially complete by August 15, 1995, and certified for occupancy in October 1995. One of the reasons for the delay was the issuance of a Stop Work Order issued in April 1995. Ms. Diehl's dissatisfaction with Respondent was affected by and escalated when Respondent placed a lien against her property. Though Ms. Diehl indicated she was generally not satisfied with Respondent's work, no competent and substantial evidence was presented demonstrating that the work was not completed or performed in a workmanlike manner. During the course of the construction project there were numerous disputes between Ms. Diehl and Respondent. The primary dispute involved a work order which would have required Ms. Diehl to pay an additional $10,000-$20,000. The change was deemed necessary by Respondent after he consulted with the civil engineer employed by Ms. Diehl for this project. The civil engineer informed Respondent that the plans initially drawn by the engineer and which had been relied upon by Respondent in his bid would not work. Similarly, additional changes were required after Respondent conferred with the structural engineer retained by Ms. Diehl. These changes, at least in part, required a modification of the location of bathroom fixtures. The essence of Ms. Diehl's complaints regarding the work performed by Respondent involve changes that were made to the plans without her approval. However, Ms. Diehl met with Respondent, the civil engineer and the structural engineer, and was aware that the engineers knew and agreed that the changes were necessary. Ms. Diehl was responsible for the electrical work involved in this project, and approved Randy's Electric as the company to perform the electrical work required by the contract. Respondent subcontracted with Rainbow Gas Company to install the gas piping which was required for this remodeling project. The total contract amount for the Diehl construction project was $158,750.00. Ms. Diehl paid Respondent all payments except the last one and employed another contractor to complete the job. No evidence was presented indicating the amount of money Ms. Diehl paid to Respondent or the amount of money, if any, paid to the contractor who completed the work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Pinellas County Construction Licensing Board enter a final order that finds that: Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(d), (h)2., and (d), Laws of Florida, as alleged in Counts One, Two, and Four of the Administrative Complaint. Respondent violated the provisions of Chapter 89-504, Section 24(2)(n), Laws of Florida, as alleged in Count Five of the Administrative Complaint, and which assesses an administrative fine against Respondent in the amount of $100.00 for that violation. Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(g) and (n), as alleged in Counts Six, Seven and Eight of the Administrative Complaint. Respondent did not violate Rule 2-15.003, Florida Administrative Code, as alleged in Count Nine of the Administrative Complaint. DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, 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 4th day of June, 1996.
Findings Of Fact Respondent, George Sigountos, is a licensed real estate broker-salesman having been issued license number 0080704 with a principal place of business at 4338 First Street North, St. Petersburg, Florida. Respondent has been licensed in the State of Florida for approximately ten (10) years, having been a broker- salesman in New York for approximately twenty (20) years before coming to Florida. The Respondent Sigountos was at all material times employed by Century 21 Realty, 4922-38th Avenue North, St. Petersburg, Florida. On or before March, 1979, Mr. and Mrs. John Opal listed for sale by the Respondent a house on Benson Avenue which they then occupied. Subsequently, the Opals located another house which they desired to purchase at 5871-78th Avenue North, Pinellas Park, Florida. The Opals obtained financing to purchase the Pinellas Park home although they had not yet sold their Benson Avenue home and requested the Respondent's assistance to sell their original home. On or about March 4, 1979, the Respondent, through his broker, submitted a contract to the seller, Mr. Boyce, from the Opals, who contracted for the purchase of the Boyce home with a closing date on or before April 10, 1979. The bank where financing was arranged informed the involved title company that interest rates were scheduled to increase as of March 19, 1979. As a result of this information, the title company and parties attempted to arrange to close on March 16, 1979. The Opals attended this closing while Mr. Boyce did not. The Opals, however, executed all documents necessary on their part for the closing on March 16, 1979. Included was an agreement requiring the sellers to replace three (3) boards on the back porch because of previous termite damage. This was included as a result of a prior conversation between Mr. Opal and Mr. Boyce concerning termite damage. Mr. Sigountos did not prepare this document and it is unclear how it came into existence. No termite inspection report was filed until March 19, 1979. The Boyce home was not inspected for termites until March 19, 1979, at which time the exterminator, Hobelman Exterminating Service, Inc., left his inspection report with Mrs. Boyce which stated, in part:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Petitioner dismissing the complaint filed April 7, 1981 against the Respondent George Sigountos. DONE and ORDERED this 1st day of October, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1981. COPIES FURNISHED: Grover G. Freeman, Esquire Suite 410 4600 West Cypress Avenue Tampa, Florida 33607 Christopher C. Ferguson 5959 Central Avenue St. Petersburg, Florida 33710 C. B. Stafford, Executive Director Florida Real Estate Commision 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Robert A. Pace has violated Section 482.161(5) and (6), Florida Statutes, and Rules 10D-55.04(4) and 10D-55.35(2), Florida Administrative Code, and therefore should be denied a pest control identification card and the opportunity to take the examination to become a certified pest control operator.
Findings Of Fact Testimony and evidence was introduced by DHRS from various witnesses regarding Pace's activities as the holder in the past of a pest control identification card with both Suncoast and Bay Area Control Companies, and as an emergency certified pest control operator for Suncoast Pest Control Company. From that testimony only the following factual allegations were proven. All other allegations against Robert A. Pace as stated in the letters of denial clearly were not proven by substantial and competent evidence. On or about March 21, 1974, Pace was a holder of a pest control identification card as an employee of Suncoast Pest Control. At this time Pace was also a partner in this company. On that date, Robert Pace offered to conduct a free termite inspection of the residence of Melvin Redlin. The inspection was conducted and live termites were shown to Mrs. Redlin by Pace with the explanation that they had been found in the area of the tub trap or plumbing service access in the bathroom of the Redlin's home. On the same day, Pace solicited a termite treatment contract with the Redlins. Treatment for subterranean termites was begun by employees of Suncoast Pest Control, but while it was in progress, one of Redlin's neighbors stated that he had never seen termites. One of the Suncoast employees stated that he had some live termites in the truck and showed Redlin and others a log infested with live termites. At that point Redlin became irate, suspecting that the individual who had inspected his home had shown his wife termites taken from the truck and not from the plumbing access space. Redlin ordered all work by Suncoast to cease. At the time Redlin directed them to stop, chemicals were being introduced into the ground around the slab foundation of the Redlin home. Before leaving, a Suncoast employee poured a jar of chemicals into the tub trap. Three weeks later, in response to a complaint by the Redlins, William Bargren, who is qualified as an expert witness in entomology and who is employed as an investigator with DHRS, inspected the Redlin's residence. Bargren found no evidence of prior termite infestation. On or about July 1, 1974, a contract for the treatment of subterranean termites was solicited from John A. Johnson by Suncoast Pest Control Company. This contract bore the signature of Robert A. Pace as a representative of Suncoast; however, Johnson was unable to identify Robert A. Pace at the hearing and described the man with whom he had dealt as being taller and heavier than Pace. Pursuant to this contract, the Johnson's house was treated for subterranean termites and certain structural repairs were made in the attic by employees of Suncoast. William Bargren, identified above, testified that upon his subsequent inspection of the home, in his opinion, it was only partially treated. Bargren found evidence of previous subterranean termite infestation but concluded that the inner walls of the foundation of the house had not been treated. For the treatment of the subterranean termites and repairs to the house Johnson wrote checks payable to Suncoast in the amount of One Thousand Eight Hundred Twenty-Two Dollars and Forty-Five Cents ($1,822.45) and One Thousand One Hundred Fifty-Five Dollars ($1,155.00). Pace was not an emergency pest control operator until July 10, 1974. The deposition of Mrs. Annie Symons, admitted pursuant to stipulation of the parties, indicates that in October, 1974, an employee of Suncoast Pest Control known only as "Joe" to Mrs. Symons inspected her residence for termites. Mrs. Symons had recently purchased the house and obtained a termite inspection and certificate prior to purchase certifying there was no evidence of termite infestation. The Suncoast employee inspected Symons' residence and advised her that her house had an active termite infestation showing her a piece of wood with live termites. Mrs. Symons called Southern Labs, the pest control firm which had conducted the original inspection. Michael Spokes, an employee of Southern Labs, reinspected Symons' residence and found no evidence of termite infestation. Concerned at the conflicting reports, Mrs. Symons contacted the Division of Health and her house was inspected by David Jones, an etomologist qualified and accepted as an expert witness at hearing and employed by the Division of Health as an inspector. Jones inspected Symons' house and could find no evidence of termite infestation. In October, 1974, Pace was the emergency certified pest control operator for Suncoast. There was no evidence introduced that Suncoast was advised of the Symons matter and that Pace was on notice of the conduct of his employee. On or about July 23, 1975, Robert A. Pace, Philip Nicholson and Rick Draper went to the residence of Irene Shipley, 301 East Lake Fern, Lutz, Florida. Mrs. Shipley was offered a free inspection by Mr. Pace which she accepted. While Pace talked with her outside of her house, Rick Draper inspected her house and a mobile home belonging to her son located to the rear of her property. According to Mrs. Shipley, Draper went under both structures and produced insects which he identified as termites. Mrs. Shipley and Pace stood outside during the inspection and discussed and negotiated a price for treating both structures. Pace stated that he would spray under both homes, the woodwork and the attic for One Hundred Fifty Dollars ($150.00) for each home. Eventually a price of Two Hundred Fifty Dollars ($250.00) was negotiated to treat by spraying both homes. The area under and around both homes was sprayed, and an attempt to spray the attic was made but was thwarted by an inner roof. After completing the Work, Mrs. Shipley gave a check to Pace payable to him in the amount of Two Hundred Fifty Dollars ($250.00). Pace gave her a contract for pest control treatment. Subsequently, Mrs. Shipley became concerned and asked the assistance of the Division of Health. William Bargren, identified above, conducted an inspection of both houses. Under Mrs. Shipley's home he could find no evidence of subterranean termite infestation but did discover dry rot, and under the mobile home, Bargren found evidence of a prior subterranean termite infestation. Bargren stated that in his opinion the treatment given both homes was insufficient because there was no evidence trenching around the house supports or boring in the pilings which he discovered under the mobile home. In October, 1975, Frank Logan contacted Robert A. Pace, while Pace was treating a home for subterranean termite infestation. Logan stated that he was impressed with the work being done and asked for Pace's card. Logan stated that he knew that his home was infested with termites and later called Pace and asked for Pace to inspect his home. Pace conducted an inspection of Logan's home and advised Logan that he had a subterranean termite infestation. Pace testified that he also saw no evidence of what he took to be an inactive dry wood termite infestation in Logan's attic. Subterranean termite treatment was made of Logan's home; however, when Logan's problems were unabated for a year, he contacted the Division of Health. William Bargren, identified above, inspected Logan's residence and found evidence of subterranean termite infestation, a substandard treatment for subterranean termites, and an active dry wood termite infestation in Logan's attic. The subterranean termite treatment was substandard in that the voids in the concrete block foundation had not been drilled and treated. Bargren also testified that the signs of dry wood termites which Pace described as having seen would not indicate an inactive infestation but an active infestation. Bargren did not offer any opinion as to whether the dry wood infestation was over a year old. Bargren stated that dry wood termites are not effected by control treatment for subterranean termites because they do not require contact with the ground. Pace and his colleague, Nicholson, who had assisted Pace on the job, each thought that the other had treated the foundation. ULTIMATE CONCLUSIONS OF LAW Pace is charged with the violation of Section 482.161 (5) and (6) and Rule 10D-55.04(4), Florida Administrative Code, arising out of his conduct in providing pest control services to Melvin Redlin. Because Mr. Redlin demanded that the employees of Suncoast cease treatment of his home prior to their having completed the job, a charge of negligently treating the Redlin residence cannot be sustained. Because live termites were shown to Mrs. Redlin, strong evidence did exist of an active infestation if the termites were from the bathroom plumbing service access. If the termites were introduced by Pace into the Redlin home, clearly Pace would be guilty of fraud and misrepresentation in violation of Section 482.161(5) Florida Statutes. Based on Bargren's testimony that no evidence was found in the bath plumbing service access area of a prior subterranean termite infestation, together with the fact that treatment of that area was done rapidly without opportunity to substantially clean the area, the Hearing Officer finds that such a false representation was in fact made by Pace. Evidence introduced by DHRS clearly indicated that Pace was not an emergency certified pest control operator until July 10, 1974. The treatment of the Johnson residence occurred on July 1, 1974. Rule 10D-55.35, Florida Administrative Code, applies only to certified pest control operators; therefore, Pace cannot be held accountable under that rule for his own activities or the activities of Suncoast employees with regard to the termite control treatment of the residence of John A. Johnson. Bargren found evidence of a prior subterranean termite infestation at the Johnson residence; therefore, there could have been no misrepresentation of an infestation. Bargren did find that the foundation of the Johnson residence was not properly drilled and protected with pesticide. Therefore, Pace did not use methods suitable for the treatment of subterranean termites in violation of Section 482.161(5), Florida Statutes. Although the certified pest control operator for Suncoast on July 1, 1974, would have been responsible for Pace's failure, Pace himself cannot avoid responsibility for his failure to properly treat the Johnson residence by virtue of the provisions of Rule 10D-55.35, supra. There is clear evidence that an employee of Suncoast other than Pace misrepresented the facts of an infestation to Annie G. Symons contrary to Section 482.161(5), Florida Statutes, and Rule 10D-55.04(4), Florida Administrative Code, in October, 1974. At that time Pace was an emergency certified pest control operator. There was no evidence introduced that Pace was contacted by Symons or by DHRS regarding misrepresentation to Annie G. Symons by an employee of Suncoast. Pace cannot be vicariously liable under the provisions of Section 482.161(5) or Rule 10D-55.04(4), Florida Administrative Code, where knowledge of a misrepresentation is required. Although responsible for the pest control treatments as a certified operator, Pace cannot be considered liable for the misrepresentations of a Suncoast employee when Pace was not aware a contract had been made. Pace clearly violated Rule 10D-55.05(2), Florida Administrative Code, by failing to give Mrs. Shipley a copy of the contract before the work was done and payments made. It was clear that the nature of the treatment Pace was to perform was clearly explained to Mrs. Shipley prior to the commencement of the work. Bargren found prior evidence of subterranean termite infestation under one of the homes, and damage to the wood under the other as a result of dry rot. In any event, the inspection of the premises was by Rick Draper, and although Pace sold Mrs. Shipley the contract, it is clear that Mrs. Shipley knew that Pace did not conduct the inspection of the houses because she was talking with Pace outside while watching Draper inspect the house. Bargren's testimony was that the treatment was substandard, and he also testified that the prior infestation of subterranean termites under the mobile home had been stopped. The testimony indicated that bargaining went on between Pace and Shipley regarding the treatment that would be applied and the price for the treatment. Treatment in accordance with this agreement was performed or a good faith effort made. Considering the circumstances there is not substantial and competent evidence of a violation of Section 482.161(5) or (6), Florida Statutes, or of Rule 10D-55.04(4), Florida Administrative Code. Pace is charged with not providing adequate subterranean termite treatment and not treating an active dry wood termite infestation at the residence of Frank Logan. Bargren's inspection revealed evidence of a prior subterranean termite infestation which had been controlled and an active dry wood termite infestation in Logan's attic. Bargren's inspection took place over one year from the date of Pace's initial inspection and treatment. Pace stated that he saw evidence of what he took to be an inactive dry wood infestation when he initially inspected Logan's residence. No evidence was obtained concerning whether the infestation of dry wood termites was over one year old. Testimony was received that dry wood termites will not be affected by subterranean termite control measures; and, further, dry wood termites may fly into a building and start a colony if preventive measures have not been taken. Logan testified that the initial treatment by Pace did not control the termites because he kept seeing them. Pace was negligent in treating for subterranean termites in that he failed to assure that the foundation voids were treated contrary to Section 482.161(6), Florida Statutes. The length of time between Bargren's inspection and Pace's treatment together with the manner of infestation of dry wood termites creates sufficient doubt regarding the allegation of Pace's failure to properly identify the dry wood infestation to find the allegations not proven. The individual allegations proven above are not significant when taken singularly; however, the evidence taken as a whole presents a picture of high pressure salesmanship by Pace and those with whom he was associated, together with poor workmanship in application of treatments. In one instance the evidence is clear that Pace made a misrepresentation of a termite infestation where evidence was lacking. He did solicit contracts on occasions in which another employee made the inspections and he lacked specific knowledge of the conditions found. As part owner of Suncoast, Pace had the responsibility to oversee his employees which he failed to do. Pace should have taken greater care to insure his employees had properly inspected homes, and were dealing honestly and forthrightly with customers. As an employee, Pace did not treat homes in a workman like manner in accordance with accepted practices. The course of conduct engaged in by Suncoast and Pace's failure to control his employees cannot be overlooked.
Recommendation Considering the findings of fact generally and the conclusions of law, the Hearing Officer would recommend that the Department of Health and Rehabilitative Services deny Pace's application to take the examination to become a certified pest control operator on the basis that Pace has not actively worked in pest control for some months, that substantial and competent evidence exist which indicates that Pace's expertise in pest control is lacking, and that his prior conduct raises questions of his business reputation and his ability to supervise employees. The Hearing Officer would further reand that Lewis S. Hall's request for an identification card for Pace be disapproved on the specific basis that Pace misrepresented an infestation to Mrs. Marian Redlin, which reflects adversely on Pace's business reputation and good character. DONE and ORDERED this 29th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank Wollett, Esquire Nixon E. Farnell, Esquire 521 Oak Avenue Clearwater, Florida 33516 Barbara Dell McPherson, Esquire Post Office Box 2417 F Jacksonville, Florida 32231
The Issue The issue for determination is whether Industrial Equipment and Supply, DEP Facility No. 139502056 is eligible for state- administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Metropolitan Dade County (Petitioner) is a political subdivision of the State of Florida. Pursuant to Chapter 24, Metropolitan Dade County Code, Petitioner regulates, among other things, the use, storage, and disposal of industrial wastes and hazardous substances in Dade County. Industrial Equipment and Supply, DEP Facility No. 139502056 (Respondent Industrial) is a Florida corporation and the owner of commercial real property located at 2035-2055 Northwest 7th Avenue, Miami, Florida. At this facility site, Respondent Industrial conducts business as a wholesale supplier of drycleaning supplies. The Department of Environmental Protection (Respondent DEP) is an agency of the State of Florida. Pursuant to Chapters 20, 376, and 403, Florida Statutes, Respondent DEP, among other things, regulates and is charged with the protection of the State's surface waters, groundwater, and other natural resources. On June 29, 1993, Petitioner's Department of Environmental Resource Management (DERM) issued Respondent Industrial a Notice of Violation and Order of Corrective Action (NOV). The NOV provided that evidence of "industrial waste discharges to the ground and groundwater" and that samples collected from Respondent Industrial's monitoring well revealed levels of tetrachloroethylene, also referred to as perchloroethylene (PERC), in violation of Chapter 24, Metropolitan Dade County Environmental Protection Ordinance.2 On or about September 20, 1993, in response to the NOV, Respondent Industrial's environmental consultant, Wingerter Environmental, prepared and submitted to DERM a Contamination Assessment Plan (CAP). On November 30, 1993, the CAP was approved by DERM, and subsequently modified on January 29, 1994. The CAP provided for the installation and sampling of five monitoring wells and four soil borings, and the surveying of relevant groundwater elevations. Analytical results from the soil and groundwater sampling identified elevated levels of PERC. Based on the analytical results, in May 1994, DERM and Respondent's new environmental consultant, AB2MT, discussed the need for expanding contamination assessment activities, including the installation and sampling of additional soil borings, shallow wells and a deep well. AB2MT completed the additional installation and sampling. Analytical results from the expanded assessment identified elevated levels of PERC, vinyl chloride and trichlorethylene. In May 1994, House Bill No. 2817, the Drycleaning Solvent Contamination Cleanup Act (Drycleaning Act), passed the Florida Legislature and was submitted to the Governor for signature. The Drycleaning Act became law, Chapter 94-355, Laws of Florida, effective July 1, 1994.3 On May 8, 1994, after passage of but prior to the Drycleaning Act becoming law, Respondent DEP announced that it was suspending all enforcement actions against drycleaning and wholesale supply facilities based on the Florida Legislature's passage of the Drycleaning Act. On May 16, 1994, Respondent Industrial's expanded contamination assessment report prepared by AB2MT was verbally approved by DERM. On January 24, 1995, DERM forwarded a Final Notice Prior to Court Action (Final Notice) to Respondent Industrial. The Final Notice stated that Respondent Industrial was not in compliance with the NOV, requested that Respondent Industrial enter into an administrative consent agreement within thirty days, and indicated that the case would be turned over to the County Attorney's Office if the referenced violations were not corrected.4 On August 30, 1995, a guidance document, regarding applications under the Drycleaning Act, was issued by Respondent DEP. The guidance document stated that Respondent DEP would begin accepting applications to the state-administered program created by the Drycleaning Act upon adoption by Respondent DEP of a rule to implement the program. In a meeting on January 25, 1996, DERM informed Respondent Industrial that it had a continuing obligation to cleanup and that it possibly could be found grossly negligent for failing to conduct a cleanup. On March 13, 1996, Respondent DEP adopted the Drycleaning Solvent Cleanup Program Rules (Rules), Chapter 62- 781, Florida Administrative Code. The Rules specified eligibility requirements for applications submitted under the Drycleaning Act. On April 21, 1996, Respondent Industrial made application to Respondent DEP for acceptance into the Drycleaning Solvent Cleanup Program. On September 16, 1996, Respondent Industrial was accepted by Respondent DEP into the Drycleaning Solvent Cleanup Program, pursuant to Chapter 62-781, Florida Administrative Code. By Petition for Formal Administrative Hearing served October 4, 1996, Petitioner appealed Respondent DEP's acceptance of Respondent Industrial into the Drycleaning Solvent Cleanup Program. According to Petitioner, Respondent Industrial's willful failure to assess and remediate contamination at the site of the wholesale supply facility constitutes gross negligence, thereby precluding its eligibility in the Drycleaning Solvent Cleanup Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order finding Industrial Equipment and Supply, DEP Facility No. 139502056 eligible to participate in the Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 5th day of May, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1998.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: l. At all times pertinent to this proceeding, the Department was the state agency responsible for receiving applications for, and the issuance of, general permits for the construction and operation of a construction and demolition debris disposal facility in the State of Florida. Petitioner Frank Strout, submitted an application for a General Permit for the construction and operation of a Construction and Demolition Debris Disposal Facility with the Department dated April 26, 1995, which was received by the Department on May 2, 1995. On May 16, 1995, the Department issued a Notice of Denial to Use a General Permit advising the Petitioner that his request for operation of a construction and demolition debris disposal facility did not qualify for a general permit based on the information submitted by Petitioner in his application dated April 26, 1995, and received by the Department on May 2, 1995. The property upon which the proposed construction and debris disposal facility was to be placed is located at 11163 Agnes Avenue, Southwest, Arcadia, DeSoto County, Florida, and is owned by Petitioner Frank Strout. This location is the same as the location of the construction and demolition debris facility owned by Petitioner that previously operated under a permit issued to Petitioner in April, 1990, which expired due to Petitioner's failure to timely file for an extension of that permit with the Department. However, the disposal area will not cover the entire area of the disposal area of the previous permitted facility. The Notice advised Petitioner that he had not provided the Department with supporting information demonstrating compliance with the construction demolition debris disposal requirements of Chapter 62-701, Florida Administrative Code, as follows: The prohibitions of Rule 62-701.300(2), Florida Administrative Code, have not been addressed. Documentation indicating that the site does not violate these prohibitions was not provided. The airport requirement of Rule 62- 701(12), Florida Administrative Code, was not addressed. Information indicating the location of airports within a 5 mile radius of the site was not provided. A site plan which meets the requirements of Rule 62-701.803(1)(a), Florida Administrative Code, was not submitted. A geotechnical investigation which meets the requirements of Rule 62-701.420, Florida Administrative Code, was not submitted as required by Rule 62-701.803(1)(b), Florida Administrative Code. A description of facility operations (operations plan) was not submitted as required by Rule 62-701.803(1)(c), Florida Administrative Code. A boundary survey was not submitted as required by Rule 62-701.803(1)(d), Florida Administrative Code. Closure plans and cross section details of the final cover which meets the requirements of Rule 62-701.320(7)(f), Florida Administrative Code, were not submitted as required by Rule 62- 701.803(1)(f), Florida Administrative Code. The Department has received a copy of a letter from Southwest Florida Water Management District (District) to the applicant, dated May 23, 1995, which indicates that the District is concerned about the proximity of the C&D debris to on- site wetlands. The letter from District, dated March 13, 1990, provided an exemption from surface water permitting requirements based on the District's understanding that the proposed operation would not change surface water drainage patterns, stormwater runoff quantities or quality. However, site inspections by the Department and District staff have indicated that surface water drainage patterns have been changed by the operation at the site. Therefore, a copy of a permit for stormwater control issued by the Department or the District shall be required pursuant to Rule 62-701.803(4), Florida Administrative Code. Information indicating the availability of equipment for the temporary storage of unacceptable wastes at the site, and segregation methods were not submitted as required by Rule 62-701.803(5), Florida Administrative Code. Compaction procedures and equipment were not described as required by Rule 62- 701.803(6), Florida Administrative Code. A description of access control methods and devices was not submitted as required by Rule 62-701,803(7), Florida Administrative Code. A description of waste inspection procedures was not submitted as required by Rule 62-701.803(8), Florida Administrative Code. The facility's operating hours were not provided to ensure compliance with Rule 62- 701.803(9), Florida Administrative Code. The closure plan submitted as required by Rule 62-701.803(10), Florida Administrative Code, is insufficient. Pursuant to Rule 62-4.070(5), Florida Administrative Code, the Department shall take into consideration a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met. Reasonable assurance that Department standards will be met has not been provided. Pursuant to Rule 62-701.803(10), Florida Administrative Code, final cover and vegetation shall be established on each disposal unit within 180 days of final receipt of wastes for that unit. Since waste has not been disposed at the site since approximately March, 1993, and the area has not been closed, the requirements of Rule 62- 701.803(10), Florida Administrative Code, has not been met. There is pond on the Petitioner's property which is located to the north of both the existing and proposed disposal areas. The pond is located within 200 feet of the proposed disposal area. The pond is contained completely within the boundaries of the disposal site and on at least one occasion has discharged to surface waters. However, there is no evidence to show that there was at least a 25 year/24 hour storm event on the occasion when the pond discharged to surface waters. Petitioner has failed to furnish the Department with the necessary information for the Department to determine if the pond discharges from the site to surface waters in a 25 year/24 hour storm event. Likewise, Petitioner has failed to provide the Department with either a copy of a storm water permit or documentation that a storm water permit was not necessary Wetlands are located along the southern boundary of Petitioner's property upon which the proposed construction and debris disposal facility will be located. These wetlands are located within 200 feet of the proposed disposal area. Petitioner has offered to reconfigure the disposal area to meet the 200 feet setback. However, Petitioner has not submitted a site plan to demonstrate the manner in which compliance with the 200 feet setback would be achieved. There is a potable water well located on Petitioner's property upon which the proposed facility is to be located which is located within 500 feet of the proposed disposal area. The permit application proposes a maximum elevation of 84 feet for the disposal area with a 3:1 slope for the entire disposal area. Petitioner has not furnished the Department with the existing elevations within the proposed disposal area. Without these elevations the Petitioner cannot show how he would comply with the proposed maximum elevation while maintaining the required 3:1 slope. Likewise, without these elevations, the Department would be unable to determine if Petitioner is complying with the proposed maximum elevation while maintaining the required 3:1 slope. Petitioner has not provided the Department with a geotechnical investigation so as to allow the Department to determine if the site's subsurface features would adequately support the proposed disposal area. The evidence in the record shows that Petitioner has not addressed all of the Department's concerns set out in Finding of Fact 4 (a) through (o). However, based on the testimony of Petitioner and Robert Butera, the Department's witness, it appears that the Department would consider the concerns set out in Finding of Fact 4 (b), (e), (f), (k), and (m) to have been adequately addressed by Petitioner. Petitioner has failed to provide the Department with reasonable assurance that the construction or operation of the facility would be in accord with applicable laws or rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying Petitioner's application for a permit for the construction and operation of a demolition and debris disposal facility. DONE and ENTERED this 19th day of January, 1996, at 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 19th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3760 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 Petitioner and the Department in this case. Petitioner's Proposed Findings of Fact. Petitioner's proposed findings of fact are set out in three unnumbered paragraphs which shall be considered as proposed findings of fact 1 through 3. Proposed findings of fact 1-2 are not supported by evidence in the record. Adopted in substance as modified in Finding of Fact 14. Department's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 15. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Frank Strout, Pro se 11163 Agnes Street, Southwest Arcadia, Florida 33821 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, David John Tribbey, was at all times material hereto a licensed real estate salesman in the State of Florida having been issued license number 0499607 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesman, in association with Century 21 G.M. Group, Inc., a broker corporation located at 2233 Nursery Road, Clearwater, Florida, and home address of 1648 Summerdale Drive South, Clearwater, Florida. On March 31, 1989, his sales license expired and has not been renewed. In the summer of 1988, George Cayley made an offer to purchase a house at 7151 Flora Avenue, Largo, Florida, from Beryl W. Constable for the sum of $25,000. This offer was accepted, and a contract for sale of real estate was executed on March 3, 1988. Respondent was the agent for the Seller. Contained in the contract was the following pertinent clauses: "4. THIS CONTRACT IS SUBJECT TO THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE HEREOF WHICH ARE HEREBY INCORPORATED HEREIN [BY] REFERENCE EXCEPT AS STATED IN OTHER PROVISIONS. OTHER PROVISIONS ... Seller will pay a maxi- mum of $500.00 towards repairs other than termite clause E. THE FOLLOWING ITEMS SHALL BE IN WORKING ORDER AT CLOSING, "as is" after closing: All items listed in #5 above and to include elec- trical and plumbing. ... E. TERMITE INSPECTION, TREATMENT: Seller shall furnish to Buyer a termite inspection report from a licensed exterminating company showing the premises to be free of visible evidence of active infestation of subterranean or drywood termites. In the event the report reveals such infestation. Seller shall, prior to closing, have the premises treated for extermination of termites and have all damage caused by such infestation repaired; provided, however, that in the event the cost of treatment and repair will exceed the sum of Five Hundred ($500.00) Dollars the Seller shall have the option of terminating this contract, in which case the earnest money deposit shall be returned to Buyer. Cayley purchased the property for investment purposes. This was the second investment property he purchased. He walked through the house shortly after it was listed, the house was in excess of thirty years old and it was apparent that it was only in passable shape, and the roof would need to be replaced. The Buyer had the roof inspected, and as a result the Seller had the roof replaced. In between the roof inspection and replacement, Bob Bluhm of Century 21 G.M. Group, Inc., on behalf of the Seller arranged for a termite inspection to be completed. On May 13, 1988, JR's Termite and Pest Control inspected the house and the report of findings indicated that the inspector observed visible evidence of drywood and subterranean termites located throughout the structure and visible damage. A notice of inspection was left under the kitchen sink. Between May 16 and 18, 1988, the house and carport was treated by tenting and all evidence of live wood destroying organisms was eliminated. However, the inspector still noted that visible evidence of damage was observed. A notice of inspection was left under the kitchen sink. The Seller took no action to repair the damage prior to closing. The closing on the house took place on May 27, 1988, at the office of Century Title and Abstract, Inc. with John W. Johnson as closing agent. At the closing, the closing agent delivered to Cayley the termite inspection reports and went over the closing statement prior to its execution by the parties to the sale. The Closing Statement, executed on May 27, 1988, showed that the Seller paid $525 for pest inspection and the parties divided equally the cost of roof repair. Cayley was advised that the house had been "tented". Cayley and the Respondent did a final "walk through" of the house the day prior to the closing, and Cayley was shown the termite inspection sticker under the kitchen sink. Cayley made no further inquiry concerning termites and Respondent provided no further information in regard to the damage caused by the termites. Following the closing, Cayley sent his contractor to replace some broken and missing siding at the bottom of one side wall and substantial damage to the structural support of the house was discovered that was caused by the prior termite infestation. It cost the Buyer several thousand dollars to repair the damage.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes, that he should be reprimanded and an administrative fine of $500 should be imposed. RECOMMENDED this 25th day of January, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4812 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: paragraphs 1,2,3,4,5 Rejected as against the greater weight of the evidence: 6,8 Rejected as a conclusion of law: 7 Respondent's proposed findings of fact: Respondent did not submit proposed findings. COPIES FURNISHED: Steven W. Johnson, Esquire Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 David John Tribbey 1201 Seminole Boulevard #8 Largo, Florida Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0750
The Issue The issue for consideration in this hearing is whether Respondent’s license as a residential contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Construction Industry Licensing Board, was the state agency in Florida responsible for the licensing of contractors and the regulation of the construction industry in this state. Respondent, Kenneth Ronald Boaz, was a residential contractor holding license CR C035360. He was the qualifying agent for Revival Remodelers, and was doing business under that name. On or about August 23, 1996, Respondent, doing business as Revival Remodelers, entered into a contract with Vicky L. Smith to construct a 20 by 24-foot room addition to her residence located at 13281 Clay Avenue in Largo, Florida. The contract price for the addition was listed as $25,000, plus permit fees, and Respondent accepted a partial payment of $21,072.60 from Ms. Smith. Respondent was instrumental in helping Ms. Smith get the financing for the project. On September 5, 1996, Respondent obtained permit No. 146699 from the Pinellas County Building Department. Before starting construction on the room, Respondent arranged for several large trees to be removed from the area of Ms. Smith’s back yard near where the rear wall of the addition would be located. When the trees were removed, the holes left by their removal were to be filled with dirt. Though Respondent arranged for the trees to be moved, Ms. Smith paid an additional $680.00 to the sub-contractor who removed them. Respondent was aware that the trees had been removed and the holes filled with dirt. Respondent began work shortly after the removal of the trees and the filling of the holes. Ms. Smith claims she did not see anyone do any compacting of the soil where the trees had been removed, but the footers and slab were poured and finished. Whereas the Pinellas County Building Code does not require a soil compaction test, it provides that foundations shall be built on undisturbed soil of properly compacted fill. At Ms. Smith’s request, construction slowed down but continued while she tried to find additional financing to complete the work. Finally, Respondent and Ms. Smith agreed the work would cease until she could obtain the amount remaining due under the project. At this point, Ms. Smith owed Respondent approximately $4,000. Ms. Smith claims that even before this, however, she noticed cracking in the concrete slab. This worried her because she wanted to lay tile as flooring. But when she mentioned this to the Respondent, he told her not to worry as he would take care of it. He did not do so, however. Because of her concern, in the Spring of 1999, Ms. Smith called the Building Department in Clearwater and the building inspector from the county came out to inspect the work. The inspector issued a red tag for the work, signifying it was unacceptable. Ms. Smith also contacted other contractors to see if tile could be successfully laid on that slab. Each has said it could not. No other contractor with whom she has spoken is willing to take over the job without additional soil compaction. One contractor gave her an estimate of $47,500 to re-build the room. Another contractor quoted a price of $44,800, but both include items not on the contract she had with Respondent. Respondent last worked on this job in December 1996. Since that time, Ms. Smith has talked with him about the quality of his work and has had two mediation sessions with him without any success. The room has not been completed because there is substantial question whether the existing work done by Respondent can be successfully completed. The defects in the construction are manifested by the following: There is a separation of the additional wall from the existing house wall of from between 1/2 to 1 inch. The roof of the addition leaks and the insulation is moldy and falling. There are cracks all over the additional floor and outside patio slab. The corners of the addition are dropping. Cinder blocks in the addition walls are cracking The lintel is broken in three places. Ms. Smith has done no more construction on the addition because she filed her complaint with the Department and is waiting to see what is done. However, she has painted and sealed the exterior walls. The leak is not through the wall cracks but through the roof. After her complaint, Respondent had someone from PSI, an engineering consulting firm, come out and perform a soils compaction test. As a result of that test, several different formulae were offered to fix the problem, but Ms. Smith was not satisfied, considering it no more than a "cover-up." Finally, Respondent offered her a structural solution to the problem that would remove the red tag. Ms. Smith would put the balance owed, plus some additional money into an escrow account, whereupon Respondent would fix the problem. However, because Ms. Smith no longer has any confidence in the Respondent, she does not want him to do any of the work. She contends that Respondent never agreed to fix the problem if she would put what she stilled owed him in escrow - only if she would add to it. Kevin McGinley is a licensed general contractor who in 1997 was asked by Ms. Smith to give her an estimate on making repairs to and completing the addition started by Respondent. His examination of the site showed severe settling on the addition. The work appeared to have been built on an uncompacted pad which caused settling, and McGinley did not want to be responsible for the work. Therefore, he gave Ms. Smith an estimate to tear down what had been done by Respondent and to rebuild from scratch. His work would include an inspection by a soils engineer to see if the existing soil would support the project. While cracks in a slab can be repaired, in the instant case, without knowing what caused the problem, he would not want to try to fix it. Wendell G. Wardell, a building inspector for Pinellas County, first inspected this project on September 16, 1996, when he went out for the slab inspection. There were several problems with the site, none of which related to the instant problem, and all of which were cleared up by November 21, 1996. He was again sent to the site somewhat later based upon a complaint by the owner. On this visit he saw cracking and settlement of the slab and he issued the red tag. Neither Respondent nor the owner called for a re-inspection that would be required before work can resume because work was not resumed. Mr. Wardell noted that a compaction test was not required by the county before the permit was issued in this case, though sometime it is required. Mr. Yaxley, a consulting engineer, visited the site in April 1998. Ms. Smith was present at the time. He observed the cracking in the floors and walls and the mildew in the roof. The most obvious defects were the 1/4-inch cracks in the floors and walls of the addition. After studying the site and the results from the two other laboratories that tested the site, he concluded that the removal of the trees caused the holes several feet deep that were then filled with 20 square yards of dirt. This fill dirt should have been compacted in a reasonable manner, and it was not. Yaxley reasoned that Respondent knew of the holes and the placement of the fill dirt and he should have done tests to ensure the compacting was done properly. The use of a bob-cat, a front-end loader, as used here, did not provide the appropriate compaction. However, removal of the trees was a clue that a closer look at the soil was required. Yaxley examined the laboratory work done on the property and determined there are two voids left under the soil from the removal of the trees. One is about 18 inches down and the other at about three to four feet down. Compaction may or may not cure this. Settling may continue for a long time. While one void could have been an unknown factor, the existence of the three trees was a known factor, and proper caution and judgment would have called for further inquiry to determine the status of the sub-surface. Respondent claims he had no knowledge of any voids in the soil. He compacted with water and soil in layers but this compacting was done under the slab area, not where the holes were filled. He used a concrete contractor to do this work and has always found it to be consistent with acceptable standards before. There are several other defects in Respondent’s performance, according to Yaxley. The core of the slab shows no reinforcing of the concrete either by welded steel or fabric fiber mixed in with the concrete; the roof deck is mildewed; there are cracks in the slab and between the main building and the addition; there are step cracks in both the north and east wall of the addition; and the bracing and attachment of the east gable above the concrete block is not adequate. Mr. Yaxley went back to revisit the property on October 5, 1998, and found that as of that time, no corrective work had been done. The problem with the property can be fixed with injections of grout and the installation of pilings. If that were done properly, Ms. Smith would be able to safely install the tile flooring she wants. However, if nothing is done, the cracks will remain and probably get worse. Respondent contends that the removal of the trees did not create holes that required fill. He asserts that the fill dirt brought in was procured at the request of the Building Department that wanted it to construct another swale on the property. Mr. Boaz admits to not using reinforcing steel in the concrete slab he poured. Instead, he ordered the fiber- reinforced concrete at a thickness of more than six inches, which exceeds the code requirement of four inches. He did not know, until he heard Mr. Yaxley’s testimony, that the concrete poured by his sub-contractor was not fiber-fill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board issue a final order in this case finding Respondent guilty of negligence resulting in danger to property, and misconduct in contracting, and imposing an administrative fine of $5,500. It is also recommended that Respondent be ordered to pay restitution to Ms. Vicki Smith in the amount of $21,072.60 or, in the alternative, within 90 days from the date of the final order, undertake such remedial construction activity as is necessary to remove the red tag issued by the Pinellas County Building Department regarding this project. DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Warren Knaust, Esquire Knaust & Valente, P.A. 2730 Central Avenue St. Petersburg, Florida 33712 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondents applied pesticide chemicals to a pre-construction application site for pre-treatment for termites and wood-destroying organisms, which was contrary to label instructions, by not applying the specific amount (volume) and concentration designated by the label in alleged violation of Section 482.051(5), Florida Statutes, and Rule 5E-14.106(6), Florida Administrative Code.
Findings Of Fact The Respondents are certified operators and applicators employed by pest control companies in the Panama City area. Stephen W. Daniels holds License No. 43026. Earl G. Pettijohn holds License No. 92006. Mr. Pettijohn is an applicator at Killingsworth Environmental, Inc., and Mr. Daniels is a certified operator for Environmental Security of Panama City. The Petitioner is an agency of the State of Florida charged with regulating the licensure, operations, and practices of pest control operators, applicators, and licensed pest control businesses in the State of Florida. The pre-construction termite treatment in question occurred on October 16, 2001. The treatment or job site was at the new construction of the Northwest Florida Community Hospital at 1360 Brickyard Road, in Chipley, Florida. Two trucks were used on the October 16, 2001, job: one was a truck marked "Killingsworth Environmental," driven by Mr. Pettijohn; the other truck was marked "Atlas" and was driven by Mr. Daniels. The chemical used in the pre-treatment for termites at the job site was a soil pesticide known as "Cyren-TC." The label for Cyren-TC indicates a requirement of 0.50 percent to 1.0 percent concentration, with an aqueous emulsion used for pre-treatment for termites. The laboratory report and analysis of the pesticide sample taken from Mr. Daniels' truck tank, at the hose end, was found to contain 0.38 percent chlorphyrifos (active ingredient), which represents a 24 percent deficiency from the minimal required rate of 0.50 percent per the Cyren-TC label. The Respondents, Mr. Daniels and Mr. Pettijohn, were called by the contractor of the job in Chipley on the evening of October 15, 2001, with his request that they perform a pre-treatment termite treatment the next morning for a monolithic slab described as being of an area of 12,000 square feet. The Respondents, therefore, filled their trucks, mixing the pesticide, based upon that measurement on the evening of October 15, 2001. They arrived at the job site the following morning at 7:15 a.m. They did not use the two trucks to treat any other sites between the filling of the trucks and their arrival on the job site in question on the morning of October 16, 2001. Upon inspecting the job site, Mr. Daniels measured the slab and determined the actual square footage to be approximately 9,300 square feet. That figure is not disputed. The truck Mr. Daniels was driving had a tank and spray capacity of 700 gallons. The 700 gallons was represented by a 500-gallon tank and by an additional 200-gallon tank. The truck was completely filled when it arrived on the job site. The truck Mr. Pettijohn was driving contained a capacity of 600 gallons in two tanks of 300 gallons each. It was completely full when it arrived at the job site. Mr. Owens, the Department's field inspector who testified in support of the Administrative Complaint, did not inspect either truck to determine or estimate their total capacities. He was not aware of how much either truck employed on the job in question actually held in total volume. He also did not observe how much chemical was left over still in the tanks in each truck when the first treatment application effort had concluded, on or shortly before 9:00 a.m., on October 16, 2001. The Respondents applied an aqueous emulsion of Cyren-TC to the 9,300 square foot monolithic slab by spraying a volume from each truck. Mr. Daniels' truck pumped five to seven gallons per minute, and Mr. Pettijohn's truck pumped seven to nine gallons per minute. Both trucks were fitted with gravity-fed pumps. The pumps on each truck would pump a higher volume, closer to seven gallons per minute or nine gallons per minute respectively, as to Mr. Daniels' and Mr. Pettijohn's trucks when the tanks were more nearly full because of the higher pressure feeding the gravity-fed pump. The volume per minute pumping rate would gradually decrease as the level in the tank became lower. Both Mr. Daniels and Mr. Pettijohn started pumping at essentially the same time or within one minute of each other. Mr. Daniels testified that he and Mr. Pettijohn applied the pesticide for 73 minutes measured by the digital clock on his radio. Mr. Daniels determined the amount of time necessary to pump the pesticide on the site from both trucks by taking an average of the output volume of the pumps on each truck. He began timing the application when he pulled the hose to the far end of the slab and turned it on. When the treatment application was complete, Mr. Daniels had approximately 50 gallons of chemical remaining in the 500-gallon tank on his truck. He had not yet used any of the 200-gallon tank on his truck. Mr. Pettijohn had approximately 55 to 60 gallons of chemical left from the two tanks totaling 600 gallons on his truck when he started the application. The testimony as to the amount of chemicals left in the tanks after this first application is unrefuted and is accepted. Mr. Daniels established that, although when the tanks were approaching empty (when the calibration was made by Mr. Owens), at which time Mr. Daniels' tank would only pump at a rate of five gallons per minute, that the pumps would pump at a higher rate, approaching seven gallons per minute as to Mr. Daniels' truck and nine gallons per minute as to Mr. Pettijohn's truck, when the tanks were full. Consequently, if one takes an average of the output volume for each truck of slightly over six gallons per minute for Mr. Daniels' truck and slightly over seven gallons per minute for Mr. Pettijohn's truck, one arrives at an application volume for Mr. Daniels' truck of 438 to 450 gallons of chemical applied. One also arrives at a volume applied for Mr. Pettijohn's truck of approximately 547 gallons if one uses an average application rate of 7.5 gallons per minute. Since the testimony as to the remaining product in the tanks is unrefuted because Mr. Owens did not observe the amount of product left in the tanks on the two trucks, and if one uses an average application rate of 7.5 gallons per minute for Mr. Pettijohn's truck and six gallons per minute or slightly more for Mr. Daniels' truck, one arrives at a figure of between 50 and 60 gallons of product remaining in Mr. Pettijohn's truck, and approximately 50 to 60 gallons remaining in Mr. Daniels' truck if one uses Mr. Daniels' factor of 73 minutes to multiply times that average application per minute rate. Thus, the approximate amount of product remaining in the tanks of both trucks being unrefuted, it is thus established that Mr. Daniels' figure of 73 minutes as the application time is most nearly correct. While the pre-treatment application was being performed, Investigator Owens was parked at a nearby parking area observing the application procedure and timing it with a stopwatch. Mr. Owens determined that Mr. Daniels had pumped for 45 minutes and 30 seconds and Mr. Pettijohn pumped for 45 minutes. Using Mr. Owens' figure of seven gallons per minute for Mr. Pettijohn's truck and five gallons per minute for Mr. Daniels' truck (the lowest pumping rates) for the entire pumping operation (which for the reasons found above is not accurate), Mr. Owens came up with an approximate application volume for Mr. Daniels' truck of 228 gallons and approximately 315 gallons for Mr. Pettijohn's truck. This figure is not realistic when one considers the amount of product left in the tanks of the two trucks at the end of the first application operation. There certainly was not an excess of 250 gallons of product left in the 500-gallon tank of Mr. Daniels' truck and 285 gallons of product left in the tank of Mr. Pettijohn's truck at the end of that first pumping operation on or before 9:00 a.m., on October 16, 2001. It cannot be determined from the testimony and evidence why there is such a great disparity in the time period Mr. Owens postulated for the treatment operation he observed, versus the most accurate 73-minute period established from Mr. Daniels' testimony. After confirming that the Respondents had completed their application effort, Mr. Owens conducted an inspection with regard to both trucks, obtaining information, and filling out necessary paperwork. Mr. Owens then took a sample from Mr. Daniels' truck only when he completed the calibrations of the trucks. That calibration, as found above, noted an application rate of five gallons per minute for Mr. Daniels' truck at a point when there was only approximately 50 gallons of product left in the 500-gallon tank to feed the gravity-supplied pump on Mr. Daniels' truck. Mr. Owens took a sample of the pesticide from the hose-end of the pump on Mr. Daniels' truck and placed it in a 32-ounce jar covered with a lid. The jar was not pre-labeled with a sample number. Mr. Owens taped the lid of the jar, and initialed it, so that the tape seal could not be broken without disturbing his initials and put the jar in the trunk of his car in an ice chest with ice. As a matter of practice, Mr. Owens does not offer a duplicate sample to an operator unless he asked for one and he did not ask Mr. Daniels to sign the tape on the jar. Mr. Owens did not take a chemical sample from Mr. Pettijohn's truck and there is no evidence as to what concentration of pesticide was in the tank on Mr. Pettijohn's truck. In the two pesticide applications on the morning of October 16, 2001, Mr. Pettijohn's truck pumped a total of 600 gallons of product on the site. It is not possible to make a factual determination as to the chemical concentration of the volume of product in Mr. Pettijohn's truck. The water used to mix the chemical for application at the job site was obtained from the water plant in Panama City. It had been, at some point, chemically treated with chlorine. There is no evidence as to any chlorine content in the water, which is chemically treated with chlorine, at least in the potable water stage and possibly in the waste water treatment stage. The sample was collected, as noted above, on October 16, 2001, but was not delivered to the laboratory to be analyzed as to the pesticide concentration until October 26, 2001. There is no indication on the laboratory report of the actual date of processing by the lab, but the final report was issued on November 14, 2001. There was at least a lapse of ten days from collection to analyzation by the laboratory. Testimony was presented concerning a study done by a Clemson University scientist which indicated that chlorine in municipal tap water was enough to degrade pesticides like that involved in this case by a factor of 32 percent in three hours. It has not been established that that occurred here, although logically some chlorine content may have been in the water that was used to mix the chemical. It is also well-known in the pesticide industry that an appropriate reaction and safeguard for a chemical spill of Chlorpyrofos is the application of bleach or chlorine to neutralize or degrade the chemical. It is not clear whether the deficient concentration pumped from the Daniels'-operated truck resulted from only chlorine content in the mix water or by the lapse of time caused by mixing the chemical the evening before it was to be used the following morning (in the interest of arriving at the job site early that morning per the instructions of the contractor). It may have been simply operator error in the proportions of water to chemical which were mixed when the tanks were filled or a combination of these three factors. Moreover, it cannot be determined precisely what concentration was actually deposited on the surface at the job site because Mr. Pettijohn's truck pumped approximately 600 gallons of total volume on the site in two applications and Mr. Daniels' truck pumped approximately 438 to 450 gallons in the first application and approximately 220 gallons in the second application, and the concentration of the chemicals pumped from Mr. Pettijohn's truck is unknown in so far as the evidential record in the case is concerned. Thus, it cannot be definitively determined what concentration of chemical actually was deposited on the surface of the job site. In any event, after Mr. Owens had calibrated the pump on Mr. Daniels' truck and taken his sample, both Mr. Daniels and Mr. Pettijohn rolled up their hoses, got in their trucks, and left the job site. After they left the job site, Mr. Owens notified the builder that the pre-treatment had been inadequate in terms of the volume of pesticide applied and so the builder requested that Mr. Daniels and Mr. Pettijohn return and apply more chemical. They arrived at the job site some 15 to 20 minutes after they had initially left and began spraying the additional chemical in the second application that morning. When Mr. Daniels and Mr. Pettijohn returned to the site, Mr. Daniels told Mr. Owens that he disagreed with Mr. Owens' volume calculations. In any event, Mr. Owens directed both Mr. Daniels and Mr. Pettijohn to pump additional volume onto the site. Thus, at Mr. Owens' direction, they pumped the volumes remaining in their trucks onto the site (with the exception of approximately 30 gallons, which was finally remaining in Mr. Daniels' truck), for a total of approximately 1,280 to 1,300 gallons being pumped on the job site. Thus, in light of the above calculations and findings, the site actually received approximately 280 to 300 gallons more than the prescribed labeled rate.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered assessing a fine against Respondent Stephen W. Daniels in the amount of $350.00, and it is further recommended that the Administrative Complaint as to Respondents Earl G. Pettijohn and Environmental Security of Panama City be dismissed. DONE AND ENTERED this 3rd day of January, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 day of January, 2003. COPIES FURNISHED: Robert O. Beasley, Esquire Litvak & Beasley, LLP 220 West Garden Street, Suite 205 Post Office Box 13503 Pensacola, Florida 32591-3503 Jack W. Crooks, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Room 520, Mayo Building Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street Mail Stop 38 Tallahassee, Florida 32399-0800
