93-000337 Department Of Agriculture And Consumer Services vs. Anthony W. Rhea Status: Closed Recommended Order on Wednesday, May 26, 1993.

Summary: Respondent inspected for wood-destroying organisms and missed obvious signs of them. Hearsay follow up inspection reports supplemented direct evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0337

)

ANTHONY W. RHEA, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On April 7, 1993, a formal administrative hearing was held in this case in

Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: John S. Koda, Esquire

Office of General Counsel

Department of Agriculture

and Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Joseph R. Fritz, Esquire

4204 North Nebraska Avenue

Tampa, Florida 33603

STATEMENT OF THE ISSUES

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).

PRELIMINARY STATEMENT

Through counsel, the Respondent requested a formal administrative

proceeding under Section 120.57(1), Fla. Stat. (1991), and the matter was

referred to the Division of Administrative Hearings on January 25, 1993. On

February 15, 1993, a Notice of Hearing was issued setting the case for final

hearing on April 7, 1993.

At final hearing, the Department called two witnesses and had Petitioner's

Exhibits 1 through 4 admitted in evidence. The Respondent testified in his own

behalf and had Respondent's Exhibit 1 admitted in evidence.

The Department ordered the preparation of a transcript of the final

hearing, and the parties were given ten days from the filing of the transcript

in which to file proposed recommended orders. The transcript was filed on May

13, 1993.

Only the Department filed a proposed recommended order in the time

allotted. Explicit rulings on the proposed findings of fact contained in the

Department's proposed recommended order may be found in the attached Appendix to

Recommended Order, Case No. 93-0337.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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/

4. It is found that the Respondent was negligent in the performance of the

inspection and in the completion of the inspection report form.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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."

CONCLUSIONS OF LAW

10. Section 482.161(1), Fla. Stat. (1991), provides in pertinent part:

The department may issue a written warning to

or fine the licensee, certified operator,

identification cardholder, or special

identification cardholder or may suspend,

revoke, or stop the issuance or renewal of

any certificate, special identification card,

license or identification card coming within

the scope of this measure, in accordance with

the provisions of chapter 120, upon any one

or more of the following grounds as the same

may be applicable:

(a) Violation of any rule of the department

or any provision of this chapter.

* * *

(f) Performing pest control in a negligent

manner.

11. Section 482.226, Fla. Stat. (1991), provides in pertinent part:

(1) When an inspection for wood-destroying

organisms is made for purposes of a real

estate transaction, a fee is charged for the

inspection or a written report is requested by

the customer, a termite or other

wood-destroying organism inspection report

shall be provided by a licensee or its

representative qualified under this measure to

perform such inspections. The inspection

shall be made in accordance with good industry

practice and standards and shall include

inspection for all wood-destroying organisms.

. . . The report shall be made on a form

prescribed by the department and furnished by

the licensee. . . .

(2) The inspection report form prescribed

pursuant to this section shall include the

following information:

* * *

(d) Any visible accessible areas not

inspected and the reason for not inspecting.

(e) Areas of the structure which were

inaccessible.

(f) Any visible evidence of previous

treatments for or infestations of

wood-destroying organisms.

(g) The identity of any wood-destroying

organisms present and any visible damage

caused.

12. F.A.C. Rule 5E-14.142(2)(c), adopted October 25, 1990, requires the

use of the October, 1989, Form 1145 for wood-destroying organism inspection

reports. (The rule was renumbered from 10D-55.142(2)(c) when it was amended to

require the October, 1989, Form 1145.)

13. Under Section 120.58(1)(a), Fla. Stat. (1991), hearsay is admissible

in administrative proceedings "for the purpose of supplementing or explaining

other evidence, but it shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil actions." The hearsay

evidence of Form 1145 inspection reports dated July 27, 1989, and October 31,

1991, supplements or explains the direct evidence in the case. The direct

evidence is sufficient, in itself, to support the Findings of Fact.

14. As found, the evidence proved violations of 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), as well as a violation of Section

482.161(1)(f), Fla. Stat. (1991).

15. Section 482.161, Fla. Stat. (1991), also provides in pertinent part:

(5) If, after appropriate hearing in

accordance with the provisions of chapter 120,

the department finds that an identification

cardholder, special identification cardholder,

certified operator, or licensee has committed

any act set forth in subsection (1), but

further finds that such violation is of such

nature or under such circumstances that

revocation or suspension of a license,

identification card, special identification

card, or certificate would either be

detrimental to the public or be unnecessarily

harsh under the circumstances, it may in its

discretion, and in lieu of executing the order

of suspension or revocation, either:

(a) Reprimand the party publicly or

privately; or

(b) Place the party on probation for a period

of not more than 2 years.

* * *

(7) The department, pursuant to chapter 120,

in addition to or in lieu of any other remedy

provided by state or local law, may impose an

administrative fine not exceeding $1,000 for

the violation of any of the provisions of this

measure. . . . In determining the amount of

fine to be levied for a violation, the

following factors shall be considered:

(a) The severity of the violation, including

the probability that death or serious harm to

the health or safety of any person will result

or has resulted; the severity of the actual

or potential harm; and the extent to which

the provisions of this measure were violated;

(b) Actions taken by the licensee or

certified operator in charge to correct the

violation or remedy complaints; and

(c) Any previous violations of this measure.

(8) A hearing officer may, in lieu of or in

addition to a fine, recommend probation or

public or private reprimand. Public reprimand

shall be in a newspaper of general circulation

in the county of the licensee.

. . .

(9) Any licensee disciplined for any

violation of s. 482.226 may be required by the

department to submit to the department reports

for wood-destroying organism inspections and

treatments performed. These reports shall be

submitted on a timely basis as required by the

department but in no case more frequently than

once a week.

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

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of May, 1993.

ENDNOTES

1/ This citation is incorrect. On or about October 25, 1990, the rule was

renumbered as F.A.C. Rule 5E-14.142(2)(c).

2/ The Department of Health and Rehabilitative Services (HRS) administered

Chapter 482 until the enactment of Chapter 92-203, Laws of Florida (1992), which

transferred those responsibilities to the Department of Agriculture and Consumer

Services.

3/ These findings are based on the direct testimony of the owner of the house

as to what was clearly visible and accessible in October, 1991, coupled with the

evidence that there was no treatment but also no live infestation after July 17,

1991. If a live infestation was underway at the time of the Respondent's

inspection, or if one began after the Respondent's inspection, it is highly

probable that, without treatment, a live infestation still would have been

ongoing in and after October, 1991. The hearsay evidence of Form 1145

inspection reports dated July 27, 1989, and October 31, 1991, supplements or

explains the direct evidence in the case.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0377

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991),

the following rulings are made on the Department's proposed findings of fact

(the Respondent not having filed any in the time allotted):

1.-6. Accepted and incorporated.

7.-10. Accepted but largely subordinate to facts found, and unnecessary.

11. a) As to the dry rot fungi, rejected as not supported by evidence on

which a finding can be made. The rest is accepted but is subordinate to facts

found, and is unnecessary.

12. Accepted and incorporated.

13.-14. Accepted but subordinate to facts found, and unnecessary.

15. Accepted. Last sentence, incorporated; the rest, subordinate to facts

found, and unnecessary.

16.-18. Accepted but subordinate to facts found, and unnecessary.

COPIES FURNISHED:

John S. Koda, Esquire

Office of General Counsel

Department of Agriculture

and Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

Joseph R. Fritz, Esquire

4204 North Nebraska Avenue

Tampa, Florida 33603

Hon. Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0800

Richard Tritschler, Esquire

General Counsel

Department of Agriculture

and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Commissioner of Agriculture written

exceptions to this Recommended Order. All agencies allow each party at least

ten days in which to submit written exceptions. Some agencies allow a larger

period within which to submit written exceptions. You should consult with the

Department of Agriculture and Consumer Services concerning its rules on the

deadline for filing exceptions to this Recommended Order.