97-000043 Department Of Agriculture And Consumer Services vs. Hugh H. Warnock And Terminix International Company, L.P.
 Status: Closed
Recommended Order on Friday, May 23, 1997.


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Summary: Evidence that termite inspector willfully or negligently failed to inspect crawl space under building not sufficient to support discipline.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF AGRICULTURE AND )

13CONSUMER SERVICES, )

16)

17Petitioner, )

19)

20vs. ) CASE NO. 97-0043

25)

26HUGH H. WARNOCK and TERMINIX )

32INTERNATIONAL COMPANY, L.P., )

36)

37Respondent. )

39___________________________________)

40RECOMMENDED ORDER

42A hearing was held in this case in Tampa, Florida on April

5425, 1997, before Arnold H. Pollock, an Administrative Law Judge

64with the Division of Administrative Hearings.

70APPEARANCES

71For Petitioner: Linton B. Eason, Esquire

77Department of Agriculture and

81Consumer Services

83Room 515 Mayo Building

87Tallahassee, Florida 32399-0800

90For Respondent: James M. Nicholas, Esquire

961815 South Patrick Drive

100Indian Harbour Beach, Florida 329367

105STATEMENT OF THE ISSUE

109The issue for consideration in this case is whether

118Respondents, Hugh H. Warnock and Terminix International Company,

126L.P. (Terminix), should be administratively disciplined by the

134Department Of Agriculture and Consumer Services, (Department),

141because of the matters alleged in the Notice to Impose Fine dated

153September 10, 1996.

156PRELIMINARY MATTERS

158By letter dated September 10, 1996, Phillip R. Helseth, Jr.,

168acting chief of the Department’s Bureau of Entomology and Pest

178Control, advised Mr. Warnock and Terminix that as a result of an

190investigation into a written consumer complaint filed with it,

199the Department intended to impose a fine of $500.00 on the

210Respondents because, it alleged, on January 22, 1996, Mr. Warnock

220failed to report visible and accessible damage and evidence

229caused by subterranean termites at a property he inspected.

238Thereafter, counsel for Respondents requested a formal hearing on

247the allegations and this hearing ensued.

253At the hearing, Petitioner presented the testimony of Hugh

262H. Warnock, Respondent and Todd P. Caudill, a pest control

272environmental specialist with the Department. It also introduced

280Petitioner’s Exhibits One through Six. Respondent testified in

288his own behalf and presented the testimony of Curt Chandler,

298branch manager of Terminix’ New Port Richey office, and Dr. John

309R. Mangold, an entomologist and technical specialist with

317Terminix. Respondent also introduced Respondent’s Exhibits A

324through C.

326A transcript of the proceedings was provided and subsequent

335to the receipt thereof, counsel for both parties submitted

344Proposed Findings of Fact which were carefully considered in the

354preparation of this Recommended Order.

359FINDINGS OF FACT

3621. At all times pertinent to the issues herein, the

372Department of Agriculture and Consumer Services was the state

381agency responsible for the licensing of pest control companies

390and applicators in Florida. Respondent, Terminix, was licensed

398as a pest control company and Respondent, Warnock, was licensed

408as a pest control applicator in Florida, and was employed by

419Terminix International Company, L.P.

4232. On January 22, 1996, Mr. Warnock conducted a termite

433inspection at property owned by Gordon C. Williamson located at

443704 Court Street in Clearwater, at Mr. Williamson’s request. The

453property was a single story commercial building.

4603. Upon completion of his inspection, Mr. Warnock prepared

469and issued to the owner a wood-destroying organisms inspection

478report on which he certified he had inspected the premises,

488except for the attic which was inaccessible. Mr. Warnock noted

498that he found no visible evidence of wood destroying organisms,

508no evidence of visible damage and no visible evidence of previous

519treatment. He noted, however, that in January 1988, the premises

529previously had been treated for dry wood termites. As a matter

540of record, the January 1988 inspection and treatment was

549conducted by ARAB Pest control which, since that time, had been

560taken over by Terminix.

5644. Mr. Warnock qualified his inspection report by the

573comment, “This report is based on what was visible to me at the

586time of inspection.” The purpose of a wood destroying organism

596report is to note existing or present activity of wood destroying

607organisms, or damage done as a result of that activity. Most

618frequently, the inspection is done for buyers of property or

628those who are lenders to those who buy, though quite often owners

640of property have it done as a part of or in preparation for a

654treatment program to protect against the organisms.

6615. On the visit in issue, Mr. Warnock did the inspection by

673himself. Having seen vents in the lower portion of the outer

684wall on his way up to the property, he thought there might be an

698air space, not necessarily a crawl space, under the floor. After

709speaking with the owner, and telling him what was intended,

719Warnock started his inspection at the north end of the building

730where he found sheet rock against the walls and a dropped

741ceiling. This particular area was one where old furniture was

751stored.

7526. Mr. Warnock went from area to area in the building, and

764was able to do his inspection better in some places than in

776others because of the clutter inside. He also inspected around

786the outside of the building, after which he went to ask Mr.

798Williamson how he could get to the space beneath the floor in the

811center of the building. In response, according to Respondent,

820Mr. Williamson said he didn’t know of any access to that area and

833suggested Warnock ask someone else. With that, Warnock inquired

842of the other individual working in the building, who, Warnock

852asserts, also said he didn’t know of an access. Though Warnock

863claims he looked as best he could throughout those portions of

874the building accessible to him, because of sawdust and lumber on

885the floor, and the wood working machinery there, he could not see

897any access ports. It was subsequently determined that there are

907three crawl spaces located under the north part of the building

918which are separated by concrete footings. These spaces are

927accessible through access ports in the floor above them.

9367. Mr. Warnock definitively states that had he known of any

947access ports to the crawl space, he would have gone down into it

960to look for damage or organisms. It is so found. Mr. Warnock

972takes exception to the photographs introduced by the Department,

981taken by Mr. Caudill several months after his initial visit,

991contending they do not accurately reflect the conditions he

1000encountered during his January 1996 visit. The major difference

1009is that at that time, sawdust and machinery covered the floor

1020access panels that appear unencumbered in the pictures, and they

1030were not visible to him when he looked. Admittedly, he did not

1042ask that any of the equipment or wood be moved or that the

1055sawdust be swept away.

10598. Subsequent to Warn ock’s inspection, Mr. Williamson

1067called the Terminix office and advised he had discovered damage

1077at the north end of the building. This damage was found by

1089Warnock on a return visit to be behind the drywall previously

1100mentioned, and was determined to have been caused by drywall as

1111opposed to subterranean termites. The treatment done under the

1120contract with ARAB in 1988 was for drywall termites, and there

1131was no contract to treat for subterranean termites.

11399. On the second visit Warnock again asked Mr. W illiamson

1150about any access ports, and, according to Respondent, Williamson

1159again denied knowing of any. A second inquiry of the other

1170gentleman on the premises met with the same response again, but

1181on this occasion, when he looked down at the floor, Warnock saw

1193an access hole in the floor, and when asked directly about it,

1205the man admitted he had cut it into the floor about two years

1218previously. Warnock claims that when he asked if there were

1228other holes, the man said there were not, but this individual did

1240not appear or present testimony at hearing. The hole was no more

1252than a series of cuts across the floor boards between the floor

1264joists which, since there was no handle, were removed one at a

1276time by being pried up.

128110. When Respondent and his assistant manager, who was

1290present with him on this visit, got down into the crawl space,

1302they found no evidence of infestation. At that time, the other

1313access holes subsequently found to exist were not known to be

1324there. Respondent steadfastly contends that none of the access

1333holes were visible to him or pointed out to him on inquiry of the

1347occupants at the time of his January 1996 visit. As such, he

1359claims, they were not accessible to him at that time.

136911. It was only after the second visit my Mr. Warnock that

1381on June 4, 1996, Williamson submitted his complaint to the

1391Department. In response, on June 7, 1996, Todd Caudill, a pest

1402control environmentalist with the Department, went to the site

1411and re-inspected it. During his inspection, done some six months

1421after Warnock’s initial visit, Mr. Caudill found termite tubes

1430and other evidence of infestation in the crawl space under the

1441building when he went into it. He took photographs of what he

1453saw. Mr. Caudill is 5’11’ tall and weighs about 260 pounds.

1464Notwithstanding, he had no trouble getting down into the crawl

1474space through the existing access holes.

148012. Mr. Caudill could easily see the termite tubes, and in

1491his opinion, they were there before Warnock’s January 1996

1500inspection of the property. He bases this opinion on the dryness

1511of the tubes, the lack of active termites there, and the extent

1523of the damage existing. He could look up into the rafter area

1535because the ceiling had been removed due to renovation, but could

1546see no termite activity there.

155113. Mr. Caudill returned to the property for a second visit

1562on June 25, 1996, at which time he took additional photographs.

1573This second series of pictures included the second crawl space,

1583on the East side of the building, and several additional access

1594holes in the floor of the building. Mr. Caudill indicates that

1605when he asked about additional access holes, he was directed to a

1617portion of the building where, when he went there, he was able

1629easily to find the portals without having them pointed out to

1640him. He could not see where any of the access portals had been

1653covered by machinery nor did it appear to him that any of the

1666machinery recently had been moved. The machinery was not so big

1677that it would cause a major obstruction.

168414. It was on this second that Mr. Caudill procured an

1695affidavit from Mr. Williamson which indicates that when Mr.

1704Warnock was there for his inspection, the access ports were not

1715obstructed and had not been obstructed for the six years the

1726tenant has occupied the space. Mr. Williamson was not present at

1737the hearing to testify in person nor was his absence explained by

1749counsel for the Department. No explanation was given by the

1759Department as to why Williamson could not be present or his

1770testimony preserved by deposition. Therefore, it is found that

1779Mr. Williamson’s affidavit is inadmissible as hearsay evidence

1787and is not considered.

179115. In Mr. Caudill’s opinion, Warnock’s report of his

1800inspection of the Williamson property in January 1996 is not a

1811complete report since it did not cover the area of the crawl

1823space. Based on his investigation of the situation, Mr. Caudill

1833recommended a fine of $500.00, after which, on September 10,

18431996, the Department issued its Notice of Intent on which the

1854alleged violations found are listed.

18591 6. At the time Mr. Caudill did his investigation of Mr.

1871Warnock’s inspection, he had been employed by the Department less

1881than a year. He is not licensed as a pest control operator, but

1894had been trained in the classroom and in on the job training with

1907other operators, and had done three inspections on his own.

191717. According to Mr. Chandler, the Terminix branch manager

1926who went with Mr. Warnock to the Williamson property in May 1996

1938as a result of Mr. Williamson’s call, termite damage was

1948discovered in the walls of the building when the covering was

1959removed for repairs and renovation. Williamson seemed to feel

1968that this area had been missed by Respondent when he was there in

1981January. In response, Mr. Chandler supported Respondent,

1988indicating the damage, as it existed and where it was, could not

2000have been found by Respondent’s inspection. He offered to put in

2011place a new treatment plan.

201618. Whether Mr. Chandler also spoke with Mr. Williamson

2025about access holes is questionable. On one hand, Chandler said

2035he did speak with him about them, yet at another point in his

2048testimony, he could not recall asking Williamson about access

2057ports. When the ports were discovered and opened, and Chandler

2067went down into the crawl space, he found no evidence of

2078infestation in that crawl space. The only evidence of termite

2088damage observed by Chandler did not extend up from the crawl

2099space, but existed in a beam which rested on a concrete slab in

2112the area opened for renovation.

211719. Dr. John Mangold has worked in the pest control

2127industry for seventeen years and is familiar with the laws and

2138rules relating to wood destroying organism reports. To his

2147understanding, equipment on the floor of a building renders the

2157area underneath it inaccessible, and an inspector cannot deface

2166an area in order to do an inspection.

217420. The inspection report done in 1988 reflects that a

2184crawl space was not inspected at that time because it was N/A.

2196Counsel agree this means “not accessible.” The second report,

2205done by Mr. Warnock, is consistent with the former in that it

2217also reflects the crawl space was not inspected because it was

2228inaccessible. Since the vents on the side of the exterior wall,

2239near the ground give rise to a presumption there is a crawl space

2252there, if the inspector cannot find access ports, he should note

2263that fact in the report and indicate why he could not get to it.

2277Though Respondent did not do this, it does not invalidate a

2288finding that at the time of his inspection, the crawl space was

2300not reasonably accessible to him.

2305CONCLUSIONS OF LAW

230821. The Division of Administrative Hearings has

2315jurisdiction over the parties and the subject matter in this

2325case. Section 120.57(1), Florida Statutes .

233122. Chapter 482, Florida Statutes , grants authority to the

2340Department of Agriculture and Consumer Services to administer and

2349enforce the provisions of the Structural Pest Control Act,

2358(Chapter 482, Florida Statutes ), to adopt rules to carry out the

2370intent and purpose of the Act and to impose an administrative

2381fine not to exceed $5,000 for any violation of the Act.

239323. The burden of proof rests with the Department to

2403establish its allegations of violation by substantial competent

2411evidence. Martuccio vs. Department of Professional Regulation ,

2418622 Sp.2d 607 (Fla. 1DCA 1993); Young vs. Department of Community

2429Affairs , 625 So.2d 831 (Fla. 1993).

243524. Section 482.226, Florida Statutes , provides that

2442whenever a wood-destroying organism inspection is made by a

2451licensee for purposes of a real estate transaction, and either a

2462fee is charged for the inspection or a written report is

2473requested, such report and inspection will be made in accordance

2483with good industry standards and practice, as established by

2492rule.

249325. Rule 5E-14.142(2)(1), Florida Administrative Code ,

2499dealing with the completion of wood destroying organism

2507inspection reports, provides:

2510The inspection will include all areas

2516accessible by normal means, but does not

2523cover those areas that are enclosed or

2530inaccessible, areas concealed by wall

2535coverings, floor coverings, furniture,

2539equipment, stored articles, insulation, or

2544any portion of the structure in which

2551inspection would necessitate moving or

2556defacing any portion of the structure.

256226. No evidence was introduced in this case to indicate the

2573purpose for which the wood destroying organism inspection was

2582made. However, for the purpose of discussion, it will be

2592concluded here that a fee was charged and a request for written

2604report was submitted. Therefore, Respondent was, consistent with

2612the terms of the Department’s rule, as cited, required to inspect

2623all areas accessible by normal means.

262927. The evidence of record indicates that there were crawl

2639spaces under the north portion of the building, and that these

2650crawl spaces were accessible through access ports in the floor.

2660It is unquestioned that the ports were not marked as such, nor

2672were there handles set into them for the purpose of removal which

2684might have given some indication of their existence. Instead,

2693the evidence shows that they were an afterthought of

2702construction, and consisted not of a single piece, but merely

2712individual floor boards cut within the parameters of the floor

2722joists which, when removed singly from between two joists,

2731allowed access to the crawl space.

273728. In addition, the evidence reflects that while machinery

2746might not have been placed over the ports, concealing them,

2756clearly wood stock and sawdust did fall freely to the floor and,

2768as Respondent contends, may well have concealed or obscured their

2778location. Therefore, when Respondent inquired as to the location

2787of any access ports, if, as he claims, he was told neither

2799occupant had knowledge of any, he could logically assume the

2809holes on the side of the building were air ports, and there was

2822no accessibility to that area from inside the building.

283129. This leaves for determination whether Respondent was

2839advised the ports existed or whether he was not. No admissible

2850direct evidence on this point was presented by the Department.

2860The comments allegedly made to Mr. Caudill by the tenant,

2870constitute hearsay evidence which, by itself, cannot form the

2879basis for a finding of fact. The affidavit of Mr. Williamson is

2891in the same category, and hearsay evidence cannot support other

2901hearsay evidence. Mr. Warnock categorically denies he was told

2910of any access port and contends he could not find any on his own.

2924In this mode, the evidence that the crawl space was accessible to

2936Mr. Warnock and that he knew of or should have known of its

2949existence is not substantial and is insufficient. The evidence

2958of record does not support a conclusion that Respondent is guilty

2969of any misconduct.

2972RECOMMENDATION

2973Based on the foregoing Findings of Fact and Conclusions of

2983Law, it is recommended that the Department of Agriculture and

2993Consumer Services enter a final order dismissing its Notice of

3003Intent to Impose Fine.

3007DONE and ENTERED this 23rd day of May, 1997, in Tallahassee,

3018Florida.

3019ARNOLD H. POLLOCK

3022Administrative Law Judge

3025Division of Administrative Hearings

3029The DeSoto Building

30321230 Apalachee Parkway

3035Tallahassee, Florida 32399-3060

3038(904) 488-9675 SUNCOM 278-9675

3042Fax Filing (904) 921-6947

3046Filed with the Clerk of the

3052Division of Administrative Hearings

3056this 23rd day of May, 1997.

3062COPIES FURNISHED :

3065Linton B. Eason, Esquire

3069Department of Agriculture and

3073Consumer Services

3075515 Mayo Building

3078Tallahassee, Florida 32399-0800

3081James M. Nicholas, Esquire

30851815 South Patrick Drive

3089Indian Harbour Beach, Florida 32937

3094Honorable Bob Crawford

3097Commissioner of Agriculture

3100The Capitol, Plaza Level Ten

3105Tallahassee, Florida 32399-0810

3108Richard Tritschler

3110General Counsel

3112Department of Agriculture and

3116Consumer Services

3118The Capitol, Plaza Level Ten

3123Tallahassee, Florida 32399-0810

3126NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3132All parties have the right to submit written exceptions within 15

3143days from the date of this recommended order. Any exceptions to

3154this recommended order should be filed with the agency that will

3165issue the final order in this case.

Select the PDF icon to view the document.
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Date
Proceedings
Date: 07/15/1997
Proceedings: Final Order filed.
PDF:
Date: 07/08/1997
Proceedings: Agency Final Order
PDF:
Date: 07/08/1997
Proceedings: Recommended Order
PDF:
Date: 05/23/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 4/25/97.
Date: 05/20/1997
Proceedings: Respondents` Proposed Findings of Fact and Recommended Order; Disk filed.
Date: 05/14/1997
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 05/05/1997
Proceedings: Transcript of Proceedings filed.
Date: 04/30/1997
Proceedings: Petitioner`s Exhibit 4 filed.
Date: 04/25/1997
Proceedings: CASE STATUS: Hearing Held.
Date: 04/14/1997
Proceedings: Order Setting Hearing sent out. (hearing set for 4/25/97; 9:00am; Tampa)
Date: 04/04/1997
Proceedings: Respondents` Objection to Notice of Video Hearing filed.
Date: 03/18/1997
Proceedings: Notice of Video Hearing sent out. (Video Final Hearing heldset for 4/11/97; 9:00am; Tampa & Tallahassee)
Date: 02/07/1997
Proceedings: Notice of Hearing sent out. (hearing set for 3/6/97; 9:00am; Tampa)
Date: 01/21/1997
Proceedings: Joint Response filed.
Date: 01/09/1997
Proceedings: Initial Order issued.
Date: 01/07/1997
Proceedings: Notice Of Rights; Agency referral letter; Petition for Formal Proceeding Form; Agency Action letter filed.

Case Information

Judge:
ARNOLD H. POLLOCK
Date Filed:
01/07/1997
Date Assignment:
01/09/1997
Last Docket Entry:
07/15/1997
Location:
Clearwater, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

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