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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0043

)

HUGH H. WARNOCK and TERMINIX )

INTERNATIONAL COMPANY, L.P., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

25, 1997, before Arnold H. Pollock, an Administrative Law Judge

with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Department of Agriculture and

Consumer Services

Room 515 Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: James M. Nicholas, Esquire

1815 South Patrick Drive

Indian Harbour Beach, Florida 329367

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether

Respondents, Hugh H. Warnock and Terminix International Company,

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

Department Of Agriculture and Consumer Services, (Department),

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

September 10, 1996.

PRELIMINARY MATTERS

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

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

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

investigation into a written consumer complaint filed with it,

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

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

failed to report visible and accessible damage and evidence

caused by subterranean termites at a property he inspected.

Thereafter, counsel for Respondents requested a formal hearing on

the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Hugh

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

environmental specialist with the Department. It also introduced

Petitioner’s Exhibits One through Six. Respondent testified in

his own behalf and presented the testimony of Curt Chandler,

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

R. Mangold, an entomologist and technical specialist with

Terminix. Respondent also introduced Respondent’s Exhibits A

through C.

A transcript of the proceedings was provided and subsequent

to the receipt thereof, counsel for both parties submitted

Proposed Findings of Fact which were carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

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

Department of Agriculture and Consumer Services was the state

agency responsible for the licensing of pest control companies

and applicators in Florida. Respondent, Terminix, was licensed

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

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

Terminix International Company, L.P.

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

inspection at property owned by Gordon C. Williamson located at

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

property was a single story commercial building.

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

and issued to the owner a wood-destroying organisms inspection

report on which he certified he had inspected the premises,

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

that he found no visible evidence of wood destroying organisms,

no evidence of visible damage and no visible evidence of previous

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

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

of record, the January 1988 inspection and treatment was

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

taken over by Terminix.

4. Mr. Warnock qualified his inspection report by the

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

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

report is to note existing or present activity of wood destroying

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

frequently, the inspection is done for buyers of property or

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

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

treatment program to protect against the organisms.

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

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

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

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

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

Warnock started his inspection at the north end of the building

where he found sheet rock against the walls and a dropped

ceiling. This particular area was one where old furniture was

stored.

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

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

others because of the clutter inside. He also inspected around

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

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

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

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

suggested Warnock ask someone else. With that, Warnock inquired

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

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

claims he looked as best he could throughout those portions of

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

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

any access ports. It was subsequently determined that there are

three crawl spaces located under the north part of the building

which are separated by concrete footings. These spaces are

accessible through access ports in the floor above them.

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

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

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

takes exception to the photographs introduced by the Department,

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

contending they do not accurately reflect the conditions he

encountered during his January 1996 visit. The major difference

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

access panels that appear unencumbered in the pictures, and they

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

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

sawdust be swept away.

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

called the Terminix office and advised he had discovered damage

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

Warnock on a return visit to be behind the drywall previously

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

opposed to subterranean termites. The treatment done under the

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

was no contract to treat for subterranean termites.

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

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

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

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

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

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

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

previously. Warnock claims that when he asked if there were

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

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

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

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

time by being pried up.

10. When Respondent and his assistant manager, who was

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

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

access holes subsequently found to exist were not known to be

there. Respondent steadfastly contends that none of the access

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

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

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

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

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

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

control environmentalist with the Department, went to the site

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

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

and other evidence of infestation in the crawl space under the

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

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

Notwithstanding, he had no trouble getting down into the crawl

space through the existing access holes.

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

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

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

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

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

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

see no termite activity there.

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

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

This second series of pictures included the second crawl space,

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

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

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

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

easily to find the portals without having them pointed out to

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

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

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

that it would cause a major obstruction.

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

affidavit from Mr. Williamson which indicates that when Mr.

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

obstructed and had not been obstructed for the six years the

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

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

counsel for the Department. No explanation was given by the

Department as to why Williamson could not be present or his

testimony preserved by deposition. Therefore, it is found that

Mr. Williamson’s affidavit is inadmissible as hearsay evidence

and is not considered.

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

inspection of the Williamson property in January 1996 is not a

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

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

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

1996, the Department issued its Notice of Intent on which the

alleged violations found are listed.

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

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

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

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

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

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

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

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

discovered in the walls of the building when the covering was

removed for repairs and renovation. Williamson seemed to feel

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

January. In response, Mr. Chandler supported Respondent,

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

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

place a new treatment plan.

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

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

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

testimony, he could not recall asking Williamson about access

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

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

infestation in that crawl space. The only evidence of termite

damage observed by Chandler did not extend up from the crawl

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

the area opened for renovation.

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

industry for seventeen years and is familiar with the laws and

rules relating to wood destroying organism reports. To his

understanding, equipment on the floor of a building renders the

area underneath it inaccessible, and an inspector cannot deface

an area in order to do an inspection.

20. The inspection report done in 1988 reflects that a

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

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

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

also reflects the crawl space was not inspected because it was

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

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

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

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

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

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

not reasonably accessible to him.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes .

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

Department of Agriculture and Consumer Services to administer and

enforce the provisions of the Structural Pest Control Act,

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

intent and purpose of the Act and to impose an administrative

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

23. The burden of proof rests with the Department to

establish its allegations of violation by substantial competent

evidence. Martuccio vs. Department of Professional Regulation ,

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

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

24. Section 482.226, Florida Statutes , provides that

whenever a wood-destroying organism inspection is made by a

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

fee is charged for the inspection or a written report is

requested, such report and inspection will be made in accordance

with good industry standards and practice, as established by

rule.

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

dealing with the completion of wood destroying organism

inspection reports, provides:

The inspection will include all areas

accessible by normal means, but does not

cover those areas that are enclosed or

inaccessible, areas concealed by wall

coverings, floor coverings, furniture,

equipment, stored articles, insulation, or

any portion of the structure in which

inspection would necessitate moving or

defacing any portion of the structure.

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

purpose for which the wood destroying organism inspection was

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

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

report was submitted. Therefore, Respondent was, consistent with

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

all areas accessible by normal means.

27. The evidence of record indicates that there were crawl

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

crawl spaces were accessible through access ports in the floor.

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

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

might have given some indication of their existence. Instead,

the evidence shows that they were an afterthought of

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

individual floor boards cut within the parameters of the floor

joists which, when removed singly from between two joists,

allowed access to the crawl space.

28. In addition, the evidence reflects that while machinery

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

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

as Respondent contends, may well have concealed or obscured their

location. Therefore, when Respondent inquired as to the location

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

occupant had knowledge of any, he could logically assume the

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

no accessibility to that area from inside the building.

29. This leaves for determination whether Respondent was

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

direct evidence on this point was presented by the Department.

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

constitute hearsay evidence which, by itself, cannot form the

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

in the same category, and hearsay evidence cannot support other

hearsay evidence. Mr. Warnock categorically denies he was told

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

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

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

existence is not substantial and is insufficient. The evidence

of record does not support a conclusion that Respondent is guilty

of any misconduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Agriculture and

Consumer Services enter a final order dismissing its Notice of

Intent to Impose Fine.

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

Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of May, 1997.

COPIES FURNISHED :

Linton B. Eason, Esquire

Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

James M. Nicholas, Esquire

1815 South Patrick Drive

Indian Harbour Beach, Florida 32937

Honorable Bob Crawford

Commissioner of Agriculture

The Capitol, Plaza Level Ten

Tallahassee, Florida 32399-0810

Richard Tritschler

General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level Ten

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this recommended order should be filed with the agency that will

issue the final order in this case.