Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
Findings Of Fact Respondent Turner is engaged in the business of pest control, including the application of termiticide to the soil of pre-construction sites for the prevention of subterranean termites. Respondent is licensed by the Petitioner under Chapter 482, Florida Statutes, as a pest control business and maintains its primary place of business in Jacksonville, Florida. Respondent Kincade is employed by Turner as a pesticide applicator technician. The Petitioner is the state agency with jurisdiction to regulate and license pest control businesses and technicians. On June 12, 1993, Mr. Phil Helseth and Mr. Montgomery, employees of the Petitioner, were returning from lunch and observed one of Respondent Turner's trucks turning onto the Blodgett construction area in Jacksonville, Florida. Helseth surmised the Respondent's truck was there to do a pretreatment for termites. Helseth then observed activities by a Turner Pest employee, later identified as Mr. Kincade, who was spraying a substance on the soil on foundation areas at sites one and two. Mr. Helseth concluded the Respondent's agent was engaged in termite pretreatment. When the Turner employer concluded his activities, he drove his truck to the construction trailer on the building site where he was confronted by Mr. Helseth and Mr. Montgomery. At that time a third employee of the Department, Mr. Parker, had arrived, bringing calibration equipment to measure the rate of discharge from the Turner Pest pumper truck. Petitioner's inspectors introduced themselves to Kincade and identified themselves. Petitioner's representative requested Kincade to produce the identification card issued to him by Petitioner. Mr. Kincade did not do so. Petitioner's representative asked Kincade questions about what he was doing, and Kincade demurred, stating it was Turner's policy for him to call a supervisor who would answer their questions. Kincade called his office, and shortly thereafter Joe Turner arrived on site. The spraying equipment utilized by Kincade was then calibrated to determine the amount of pesticide mixture being emitted. Joe Turner, President of Turner Pest Control, Inc., denied that they were performing a pre-construction treatment for termites. Mr. Turner testified that the purpose of spraying the Dursban 2E on the site in question was to empty the tank and that this was proper disposal of the chemical in accordance with the label instructions. A local pest control operator testifying for Respondents stated that the disposal of the pesticide Dursban 2E in this manner was perfectly in accordance with the label and that he has emptied tanks of Dursban 2E on construction sites twenty to thirty times in the last two or three years. Petitioner did not offer any testimony that this method of disposal was contrary to the label. Petitioner concluded that Turner Pest was conducting a termite pretreatment, although informed by Joe Turner at the time such was not the case, and filed the initial Administrative complaint. The Blodgett site contractor's job superintendent, Joe Wilson, testified. Sites prepared for construction at Blodgett Homes would receive termite pretreatment and pest control. Joe Turner had consulted with Wilson about spraying the Dursban 2E to dispose of the chemical. The job superintendent knew the operator, Kincade, was not performing a pretreatment for termites. Dursban 2E is a general insecticide. It, according to its label, can be used in a variety of concentrations, for a variety of insects, but termites are not one of those insects. Disposal, according to the labels, is by spraying the chemical on soil such as to lawn or a building site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services dismiss the charges against Turner Pest Control, Inc. and impose an administrative fine in the amount of $100.00 against Respondent, William D. Kincade. DONE AND ENTERED this 14th day of April, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 14th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-6624 Both parties filed Proposed Recommended Orders which were read and considered. The following states which of these proposed findings were adopted and which were rejected and why. Petitioner's PFOF: Paragraph 1 and 2 Adopted. Paragraph 3 True, but irrelevant. Paragraph 4 Respondent's paragraph 3 et seq. better states the facts. Last part adopted as paragraph 5. Paragraph 5 Adopted RO paragraph 5. Paragraph 6 Adopted RO paragraph 6. Paragraph 7 Adopted RO paragraph 7. Paragraph 8 Rejected as argument. Paragraph 9 Contrary to better evidence. Mr. Helseth conclusions were based upon his conclusion that Dursban 2E was being used as a termite pre- treatment, not being disposed of. Paragraphs 10, 11 RO paragraph 8. Last sentence is rejected because it was accepted that use and disposal was controlled by the instructions on the label. The label indicates disposal by spraying on soil was appropriate. Respondent's PFOF: Paragraph 1 RO paragraph 3. Paragraph 2 RO paragraph 4 and RO paragraph 9. Paragraph 3 Irrelevant. Paragraph 4 Restated in RO paragraph 5 and 6. Paragraph 5 RO paragraph 11. Paragraph 6 RO paragraph 11. Paragraph 7 RO paragraph 12. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, FL 32399-0800 William G. Cooper, Esquire COOKER MYERS 136 East Bay Street Post Office Box 1860 Jacksonville, FL 32201
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the regulatory agency charged with regulating the terminate and pest control industry in Florida. Respondent, Howard R. Kempton, is a certified operator licensed by the Petitioner. During times material, Respondent was a certified pest control operator for Pinellas Termite and Pest Control, Inc., in St. Petersburg. On July 24, 1991, Respondent was the certified operator in charge of fumigation of a residential structure at 3318 Shamrock in Tampa, Florida. In carrying out the fumigation, Respondent used the fumigant product VIKANE (sulfuryl fluoride). Respondent did not provide Petitioner a notice of the intended fumigation at 3318 Shamrock in Tampa within 24 hours in advance of the fumigation as is required by the Petitioner's rules and the labeling provisions for the product VIKANE. In addition, Petitioner's inspector, William Bargen, who has been employed by Petitioner in the office of entomology in excess of 28 years, visited the residence on the day of the fumigation and the tarpaulin that Respondent used was not air tight as practicable in that it contained numerous slits and tears that was not properly sealed at the ground level encompassing the structure. The safety warning signs fastened to the exterior of the tarpaulin were not printed in indelible ink or paint and the emergency phone numbers for the certified operator were not legible. As a result of the improper seals, the fumigant VIKANE was escaping from the tarpaulin while the gas was being pumped into the structure at 3318 Shamrock on July 24, 1991. Inspector Bargen took photos of the fumigation tent as it was in place at 3318 Shamrock on the day in question, July 24, 1991 and it depicts the condition of the tarpaulin and the improper signs that were utilized by Respondent on that jobsite. The owner of the property called Petitioner's office and Inspector Bargen visited the site on July 24, 1991. It is undisputed that Respondent alerted the homeowner to call Petitioner who in turn dispatched Inspector Bargen to the site based on instructions from Respondent that he alert the Department of the on-going problems that he was having with his employer, Pinellas Termite and Pest Control, Inc. Respondent admits that the manner in which the fumigation occurred on July 24, 1991 at 3318 Shamrock in Tampa was improperly performed. However, Respondent offers that he did as much as he could under the circumstances to comply with the Petitioner's rules and regulations and the labelling instructions for the fumigant VIKANE as set forth by the manufacturer. Respondent related numerous occurrences whereby he attempted to convey the importance of carrying out the proper instructions to his employer without success. As a result, Respondent sought other employment and is no longer employed as a certified operator with Pinellas Pest Control. Finally, while Respondent recognized that a certified operator is responsible for the overall operations of the fumigation projects that he is in charge of, he relates that instructions were given to office personnel at Pinellas Pest Control to advise the Petitioner of the 24 hour notice prior to the date of fumigation and he was under the impression that timely notice was forwarded to Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $250.00 payable to Petitioner within 30 days of the entry of the Petitioner's final order.1/ DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida. JAMES E. BRADWELL 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 29 day of May, 1992.
The Issue Whether respondent's pest control operator's certificate should be revoked on charges that she violated Chapter 482, Florida Statutes, by acting as a certified operator when her primary occupation and full-time employment were not in the pest control business.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's certificate as a pest control operator be revoked; but such revocation should be stayed for 30 days and vacated if, during such period, she terminates her part-time employment as a certified pest control operator in charge of Burkes' pest control activities. DONE and RECOMMENDED this 12th day of November, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 12th day of November, 1982.
The Issue The issues in this case are whether Respondent violated Subsections 482.121(1)(a) and 482.121(1)(b), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact PFSG, Inc., d/b/a US Lawns of Destin (US Lawns),2 submitted a Pest Control Business License Application to the Petitioner, listing Mr. Lewis as its certified operator in charge for lawn and ornamental pest control, effective August 9, 2007. Mr. Lewis’ certificate number is Jf 13685. US Lawns had been operating on an emergency certificate from June 6, 2007, until Mr. Lewis’ employment on August 8, 2007. In its application for a business license, US Lawns requested that its emergency certificate be canceled as of August 8, 2007. In order for a pest control company to operate, the company has to have a certified pest control operator in charge of the pest control activities at the licensed business location. If a company does not have a certified operator to serve as the certified operator in charge, an emergency certificate can be issued and renewed monthly up to a year, allowing an employee who did not have a certified operator’s certificate to serve as the certified operator in charge. As the certified operator in charge for US Lawns, Mr. Lewis applied to Petitioner for a pest control employee identification card, effective August 9, 2007. He listed the commencement of his employment with US Lawns as August 9, 2007. He also stated that his last employment with a pest control company had ended on June 11, 2007. A pest control employee identification card was issued to Mr. Lewis by Petitioner. Mr. Lewis’ wife died on July 4, 2007. Petitioner received a complaint that Mr. Lewis was not working full time for US Lawns and was allowing US Lawns to use his certificate to maintain its business license. Based on the complaint, Michael Walters, who is employed by Petitioner as an environmental specialist II, began an investigation. Mr. Walters went to US Lawns' office and made an inspection. On October 31, 2007, Mr. Walters went to see Mr. Lewis at Mr. Lewis’ home for the purpose of interviewing Mr. Lewis. Mr. Lewis gave Mr. Walters a signed affidavit, which stated: I work full time with U.S. Lawns of Santa Rosa Beach. I have been part time since the loss of my wife, but I do go to work at least once a week and check on things. I do all the training for card holders and such. As soon as I feel better I should be back fulltime. I have been there around 5 yrs., minus one year with another company. In his request for an administrative hearing, Mr. Lewis stated: “I was on vacation for 4 weeks, due to the death of my wife,” and I was not working part time ever. The evidence is clear that Mr. Lewis was not working full time for US Lawns from the time of his wife’s death until at least the date of his affidavit, October 31, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Lewis violated Subsection 482.121(1)(a) and 482.121(1)(b), Florida Statutes, and revoking his certified operator’s certificate. DONE AND ENTERED this 19th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 19th day of August, 2008.
Findings Of Fact At all times pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner; further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and imposes an administrative fine in the amount of $250 against each Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON 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 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made. The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact. COPIES FURNISHED: Karen Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Joseph A. Collins, III Owner Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com, engaged in the unlicensed practice of pest control, in violation of sections 482.071, 482.161, and 482.165, Florida Statutes (2015)1/; whether Respondents, Tamer Kekec and Stephen Franco, engaged in pest control services in violation of sections 482.071, 482.165, and 482.191; and, if so, what penalties should be imposed against Respondents.
Findings Of Fact The Parties Petitioner, Department of Agriculture and Consumer Services (Petitioner or Department), is the state agency charged with administering the Structural Pest Control Act, chapter 482, Florida Statutes (the Act). Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com (Elite), is a Florida Limited Liability Company, whose principal place of business is 9951 Atlantic Avenue in Jacksonville, Florida. Elite is a residential structural inspection company offering home inspections in northeast Florida and southeast Georgia. Elite has never been licensed by the Department to engage in the business of pest control, pursuant to section 482.071. Respondents, Tamar Kekec and Stephen Franco (the Individual Respondents), are the managers, and only members, of Elite, which was formed in 2004. Pest Control Activities Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. See § 482.071(1), Fla. Stat. Petitioner is likewise authorized to issue employee identification cards to persons employed by licensees to perform pest control services. See § 482.091, Fla. Stat. It is unlawful for any person, partnership, firm, corporation, or other business entity to engage in the unlicensed practice of pest control as that term is defined in section 482.021(22). See § 482.165(1), Fla. Stat. "Pest control" is broadly defined in section 482.021(22) to include: (b) The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; * * * (e) The advertisement of, the solicitation of, or the acceptance of remuneration for any work described in this subsection, but does not include the solicitation of a bid from a licensee to be incorporated in an overall bid by an unlicensed primary contractor to supply services to another. Thus, both the conduct of wood-destroying organism (WDO) inspections, and advertising for the conduct of WDO inspections, are “pest control” activities regulated by the Act. Section 482.191(1) makes unlawful the advertisement of pest control services except as authorized under chapter 482. Absent limited circumstances not applicable here, persons or entities engaging in such advertisement must be licensed by Petitioner to practice pest control. Petitioner is further authorized to take disciplinary action against licensees and identification cardholders, pursuant to section 482.161, and to issue fines against persons who engage in the unlicensed practice of pest control, pursuant to section 482.165. WDO Inspections by Elite Prior to April 10, 2014 Between January 3 and April 10, 2014, Elite, through its member Mr. Franco, performed 99 WDO inspections, in addition to residential structural inspections, for its customers. During that timeframe, Elite billed its customers $6,850.00 for WDO inspections performed by Mr. Franco. During that same timeframe, Mr. Kekec performed 49 WDO inspections, in addition to residential structural inspections for Elite customers, billing them a total of $6,290.00. All customer payments for WDO inspections conducted by the Individual Respondents were deposited into Elite’s business banking account with BBVA Compass Bank. DL and the Individual Respondents Florida Quality Services, Inc., d/b/a DL (DL), is a Florida corporation licensed to engage in the business of pest control, and whose business address is 7008 Bayard Road, Ft. Pierce, Florida. William R. Miles is DL’s president and holds a pest control operator’s certificate, pursuant to section 482.111. In the language of the licensing statute, Mr. Miles is the Certified Operator in Charge (COIC) at DL. Every employee who performs pest control for a licensee must have an identification card. See § 482.091(1)(a), Fla. Stat. On April 5, 2014, Mr. Miles applied to Respondent for pest control employee identification cards for Respondents Kekec and Franco. In the application, Mr. Miles stated that the Individual Respondents would begin conducting WDO inspections for DL on April 22, 2014. The Individual Respondents signed a portion of the application certifying that they were not “currently employed by any other pest control licensee.” They also certified that they were previously employed by another unnamed licensee with a termination date of April 21, 2014. Mr. Kekec was “employed” by a number of pest control companies concurrent with his operation and management of Elite, including FK Pest Control from January to March 2014, DL Pest Control from June 2011 to December 2013, CS Pest Control from April 2009 to May 2011, TI Pest Control for an unspecified period, and A1 Pest Control from May 2005 to October 2006. Curiously, all these companies had the same business address as DL--7008 Bayard Road, Ft. Pierce, Florida.2/ The Individual Respondents were issued pest control employee-identification cards by the Department on April 10, 2014, identifying them as employees of DL. In August 2014, DL applied to renew its license for the 2014-2015 license year, listing the Individual Respondents as employees to be issued identification cards as WDO inspectors for DL. DL and Respondent Elite Following issuance of employee-identification cards to the Individual Respondents, Elite continued to conduct WDO inspections, as well as residential inspections, for its clients, and bill those clients for WDO inspections. All payments received by Elite from its customers for whom it conducted WDO inspections were deposited into Elite’s business bank account. Between January 3 and December 31, 2014, Elite conducted over 300 WDO inspections for its customers, billing them in excess of $48,000 for said inspections. Elite continued to conduct WDO inspections for its customers, bill its customers for those WDO inspections, and accept payment for those WDO inspections, in 2015 as it had in 2014. Elite obtained customers through its website, and through referrals from both previous customers and real estate agents. Elite’s customers scheduled their home and WDO inspections directly with Elite through Mr. Kekec or Mr. Franco. Elite set the price per inspection based upon the size, age, and the type of construction of the customer’s property. Elite provided the ladders, flashlights, screwdrivers, extension probes, and, with the exception of a short period in 2015, the vehicle, used by the Individual Respondents to conduct WDO inspections. When Elite did not provide the vehicle for a brief period in 2015, Elite used a vehicle personally owned by Mr. Kekec. Elite also paid the fuel cost to travel to and from inspections of customer properties, which is Elite’s only operating expense. After issuance of employee-identification cards to the Individual Respondents, Elite entered into an arrangement with DL by which Elite would pay DL $38 for each WDO inspection conducted by the Individual Respondents. In turn, DL paid the Individual Respondents $10 for each WDO inspection they conducted. For the 2014 tax year, DL paid Mr. Kekec $1,160 and issued him a W-2 wage and tax statement. That same year, DL paid Mr. Franco $1,130 and issued him a W-2 wage and tax statement. For each WDO inspection conducted, the Individual Respondents prepared and signed a WDO inspection report on a form required by the state. Each inspection report listed DL as the inspection company. Each report was reviewed by Mr. Miles after-the-fact in his office in Ft. Pierce. Mr. Miles testified that he provided constructive criticism via email once a month to his WDO inspectors regarding completion of the reports. However, if an inspector had completed inspection reports for three consecutive months, Mr. Miles suspended monthly review of their reports and only conducted “spot checks.” Respondents introduced no document to evince review and criticism of any report completed by either Mr. Kekec or Mr. Franco. Whether DL provided ongoing training in WDO inspections to the Individual Respondents was a contested issue at hearing. Respondents attempted to introduce a composite exhibit consisting of two manuals, two posters of termites, and a “flip-book” produced by University of Florida. When asked whether DL provided the manuals to Mr. Kekec, he testified, “[W]ell, the last version of the manuals, I believe it was provided in 2013, but I think there was four or five different versions of it. It’s been updated over the years.” The evidence was not clear whether DL provided the manuals to the Individual Respondents or they were obtained by other means. Even if the manuals were provided by DL to the Individual Respondents, there is insufficient evidence to find that DL provided any ongoing relevant training to the Individual Respondents. The parties stipulated that the Individual Respondents met the training requirements to qualify to be identification cardholders. The only equipment issued to the Individual Respondents by DL for their use in conducting WDO inspections was a magnifying glass. Elite Website During all times relevant hereto, Elite maintained a website whose address was www.eliteinspectors.com. Elite noted “WDO Inspections” as one of its services and areas of expertise. Under “About Us” on its website, Elite stated, “In addition to home inspections, we do . . . wood destroying organism (termite) inspections (performed by DL employees).” With regard to WDO inspections, the website included the following: Our inspectors are State Certified WDO inspectors with several years of experience and meet all of the Florida continuing education requirements. We perform the WDO inspection while performing the home inspection so one additional step can be eliminated, which saves time and money. WDO inspections are performed by DL employees. In the “Inspector Biographies” section, the website reported that Mr. Franco was a “Certified Pest Operator- Termite” and that Mr. Kekec was “a licensed WDO inspector under DL pest services.” At final hearing, Mr. Kekec was unable to identify any reason why Elite would want to identify Mr. Franco to its customers as a licensed pest control operator. The website did not identify what DL was or its relationship with either Elite or its managers, Mr. Franco and Mr. Kekec.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding: Respondents, Elite Inspectors, LLC, d/b/a EliteInspectors.com, Tamer Kekec, and Stephen Franco, violated sections 482.071(1) and 482.165(1), by engaging in the business of pest control in 2014 and 2015 without a license from the Department, and impose an administrative fine of $4,500 against the Respondents, jointly; Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com violated section 482.161(1)(h), by engaging in misleading advertising relating to pest control, and issue a warning letter thereto; and, Respondents, Tamer Kekec and Stephen Franco, violated section 482.091(2)(a), by conducting WDO inspections in 2014 and 2015 as independent contractors to DL, and revoking the Individual Respondents’ identification cards, pursuant to section 482.161. DONE AND ENTERED this 22nd day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2016.
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.
