STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LARRY KRAVITSKY, )
)
Petitioner, )
)
vs. ) Case Nos. 04-4061
) 06-0132
DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )
)
Respondent. )
) LARRY KRAVITSKY, )
)
Petitioner, )
)
vs. ) Case No. 06-0414
) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on November 14 and 15, 2007, and September 17, 2008, by video teleconference, with the parties appearing in Fort Lauderdale, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.
APPEARANCES
For Petitioner: Charles M. Kramer, Esquire
Rogers, Morris & Ziegler LLP 1401 East Broward Boulevard Fort Lauderdale, Florida 33301
For Respondent: David W. Young, Esquire
Department of Agriculture and Consumer Services
Mayo Building, Suite 520
407 South Calhoun Street Tallahassee, Florida 32399-0800
STATEMENT OF THE ISSUES
DOAH Case No. 04-4061: Whether the Petitioner's application for renewal of his pest control operator's certificate JF9079 for 2004 should be granted or denied.
DOAH Case No. 06-0132: Whether the Petitioner's application for renewal of his pest control operator's certificate JF9079 for 2005 should be granted or denied.
DOAH Case No. 06-0414: Whether the 2005 application of Petitioner's employer for a pest control identification card for the Petitioner should have been granted or denied.
PRELIMINARY STATEMENT
In a Notice of Intent to Deny Renewal Application for Certified Pest Control Operator Certificate JF 9079 ("Notice") dated September 28, 2004, the Department of Agriculture and Consumer Services ("Department") advised Larry Kravitsky that it intended to deny his application to renew his pest control
operator license for 2004. The Notice provided in pertinent part:
The Department of Agriculture and Consumer Services ("Department") conducted an investigation and found the following evidence of violation(s):
The applicant offered a bribe, on one or more occasions, to a Department inspector to delay sending the results of his investigation, regarding the applicant, to the investigator's superiors.
The applicant admitted to a Department inspector that on one or more occasions, while allegedly performing fumigation treatments, he omitted the introduction of the fumigant (Vikane®) into the structure that was to be fumigated and failed or refused to advise the consumer of this.
In accordance with Section 482.161(1), Florida Statutes, the renewal application for your certified pest control operator certificate, JF 9079, is DENIED.
Mr. Kravitsky timely requested an administrative hearing, and the Department transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No. 04-4061.
In April 13, 2005, the Department filed a Motion to Amend and Supplement Notice of Intent to Deny Renewal Application for Certified Pest Control Operator Certificate JF 9079, to which it attached the proposed Amendment and Supplement to Notice of Intent to Deny Renewal Application for Certified Pest Control Operator Certificate JF 9079 ("Amended Notice I"). The Amended
Notice incorporated the original Notice and charged Mr. Kravitsky with:
having violated Section 482.161(1)(e), Florida Statutes (2004), by making "false or fraudulent claims with respect to pest control," knowingly misrepresenting "the effects of materials or methods used in pest control," or knowingly failing "to use materials suitable for the pest control undertaken" with respect to a fumigation at 279 Southeast 8th Terrace in Deerfield Beach, Florida, on April 20, 2004;
having violated Section 482.161(1)(e), Florida Statutes (2004), by making a "false or fraudulent claim with respect to pest control"
having violated Section 482.161(1)(g), Florida Statutes (2004) by "[f]ailing to give the Department inspector true information" with respect to a fumigation at
16745 Southwest 300th Street in Homestead, Florida, on April 17, 2004;
having pleaded guilty to the crime of income tax evasion in the United States District Court for the Eastern District of New York on May 14, 2001, with a sentence of four months of home confinement and five years' probation, which is a ground for denying a license renewal pursuant to
Section 482.161(1)(d), Florida Statutes (2004);
having pleaded guilty on January 11, 2005, in the United States District Court for the Southern District of Florida, to the offense of "'failing to refrain from the violation of the law,'" in a proceeding to revoke his probation, where the underlying offense was "'unlawful compensation contrary to Florida Statutes 838.016(1).'"
Mr. Kravitsky subsequently applied for renewal of his pest control operator certificate for 2005. In a Notice of Denial of Application for Renewal of Certified Operator Certificate
Number JF 9079 ("Notice II") dated December 9, 2005, the Department advised Mr. Kravitsky that it was denying his renewal application. The grounds for denial stated in Notice II were identical to the grounds stated in Amended Notice I.
Mr. Kravitsky timely filed a request for an administrative hearing, and the Department transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No. 06-0132.
On or about November 8, 2005, Mr. Kravitsky's employer, Ship Shape Pest Control, applied for a pest control employee identification card for Mr. Kravitsky. In a Notice of Denial of Application for Pest Control Employee-Identification Card for Larry Kravitsky ("Notice III") dated December 9, 2005, the Department advised Mr. Kravitsky that it was denying Ship
Shape's application. The grounds for denial stated in Notice III were identical to the grounds stated in Amended
Notice I and Notice II. Mr. Kravitsky timely filed a request for an administrative hearing, and the Department transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No. 06-0414.
Upon the Department's motion, an Order was entered on April 21, 2005, consolidating DOAH Case Nos. 04-4061, 06-0132, and 06-0414. Pursuant to notice, and after a number of continuances and abatements, the final hearing was convened on November 14, 2007, and continued through November 15, 2007.
Because the hearing was not completed on November 15, 2007, the hearing was re-scheduled for February 21 and 22, 2008. On
Mr. Kravitsky's motions, the continuation of the final hearing was continued several times. The final hearing was ultimately re-scheduled for September 17, 2008, and was concluded on that date.
During the final hearing, Mr. Kravitsky presented the testimony of Captain Glenn Kramer, Lieutenant Robin Walk, and Diane Brito. Petitioner's Exhibits A through E, G through L, Q, T, U, BB, and CC were offered and received into evidence; Petitioner's Exhibit F was offered into evidence but rejected and not proffered. Petitioner's Exhibit G is the transcript of
the deposition of Eric Reiss taken December 20, 2006. The Department presented the testimony of Lieutenant Robin Walk, Eric Reiss, Michael Page, Mr. Kravitsky, and Kenneth Glassman. Respondent's Exhibits A through K and P were offered and received into evidence. Respondent's Exhibits M and N were offered into evidence but rejected; these exhibits were proffered. Respondent's Exhibit P is the transcript of the deposition of Mr. Kravitsky taken September 11, 2007.
At the conclusion of the final hearing, the Department was given leave to renew its request that Respondent's Exhibits M and N be received into evidence. The Department filed its Motion to Reconsider Admission into Evidence of Respondent's Composite Exhibit M and N; the Petitioner subsequently filed its response in opposition to the Department's motion. An order denying the motion to reconsider the evidentiary ruling was entered April 10, 2009.
The three-volume transcript of the proceedings was filed with the Division of Administrative Hearings on October 14, 2008. The parties timely filed their proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
At the times material to his proceeding, the Department was the state agency responsible for regulating the pest control industry in Florida and is specifically responsible for licensing and regulating pest control operators and for issuing pest control employee identification cards. See §§ 482.032(1); 482.091; 482.111; and 482.161, Fla. Stat. (2004).
On or about May 4, 2001, Mr. Kravitsky pleaded guilty in the United States District Court for the Eastern District of New York to income tax evasion and was sentenced to four months of home confinement and five years' probation. This crime is a felony under federal law. As of the date of the final hearing, Mr. Kravitsky's civil rights had not been restored.
Vikane gas is a fumigant that was commonly used in 2004 to treat structures for termites. Pest control operators were required to follow the instructions on the label to ensure that the Vikane gas is used appropriately. The structure to be fumigated must be enclosed in a tent, and the Vikane gas is injected, or "shot," into the tent through a hose that is attached to the tent in a way that prevents significant leakage of the gas.
After a structure is fumigated, two aeration procedures must be completed. The first aeration procedure requires that the tent be partially taken down, and the windows and doors of the structure are opened to allow the Vikane gas to leave the structure. This first aeration procedure could take less than one hour. For the second aeration procedure, the tent surrounding the structure is totally removed. The windows of the structure are locked, and the doors are locked with the regular door locks and with secondary locks to which only the pest control operator has the keys. Warning signs are posted on the doors indicating that the structure should not be entered for a minimum of six hours to ensure that the Vikane has been safely cleared from the structure. The warning signs, which are to be put up by the pest control operator-in-charge who actually performed the fumigation, include the name, address, and phone number of the company doing the fumigation; the date and time the Vikane gas was introduced into the structure; and the name of the certified pest control operator responsible for the job. These precautions are to prevent the owner of the structure from entering before the Vikane gas has dissipated to a safe level and to provide information regarding the pest control company handling the fumigation.
Pest control companies are required to notify the local office of the Department's Bureau of Entomology and Pest Control
whenever a structure is scheduled for fumigation. The notice is provided on a Department form, and the notice must be received by the local office at least 24 hours in advance of the introduction on the fumigant. In the Broward County office, Department inspectors randomly pull Fumigation Notices after they are received, usually by facsimile transmission, and they investigate fumigation sites when the fumigation tents are put up and when they are taken down. The purpose of the inspections is to ensure that all safety procedures had been followed.
In the spring of 2004, Mr. Kravitsky was employed by Ship Shape Pest Control, a company that he had previously owned but had transferred to his brother in February 2004.
Mr. Kravitsky was a certified pest control operator and often served as the pest control operator-in-charge when Ship Shape Pest Control fumigated a structure. The pest control operator- in-charge is responsible for introducing the fumigant into the structure and for ensuring that all safety procedures are followed.
On April 16, 2004, Eric Reiss, who was, at the time, a field inspector with the Broward County, Florida, office of the Department's Bureau of Entomology and Pest Control, received a call from another inspector, Richard Lucas, who was concerned about a fumigation that had been performed by Ship Shape Pest Control to a structure located at 16745 Southwest 300th Street
in Homestead, Florida. Mr. Reiss agreed to go to the fumigation site on April 17, 2004, and complete the fumigation aeration inspection.
Mr. Reiss arrived at the site at approximately 7:00 a.m. No one from Ship Shape Pest Control was on site.
Mr. Reiss walked around and observed that the structure was a single-family residence with a small building that looked like a shed in the back yard, about 50 feet from the main building.
Mr. Reiss walked around the property and observed that a PVC pipe emerged from the back of the main structure and apparently ran through the yard and entered the shed. Mr. Reiss could not, however, be certain that the PVC pipe connected the two structures, since he could not see the entire length of the pipe.
It appeared to Mr. Reiss that someone, a relative of the homeowner, was living in the shed, but the shed had not been prepared and cleared for fumigation and there was no warning sign or secondary lock on the shed. Mr. Reiss was concerned that, if the PVC pipe was connected to both of the structures, the Vikane gas that had been used to fumigate the main structure could have moved through the pipe into the shed and endangered the life and health of anyone who happened to be in the shed during the fumigation. During Mr. Reiss's first visit to the site, he did not see anyone on the property.
Mr. Reiss left the site at approximately 7:30 a.m. and got a cup of coffee. When he returned to the site, he rode down the street, trying to find a place to park so he could observe the final aeration procedure from a "covert" location.1 He was not able to find a hidden location, so he drove back to the fumigation site. When Mr. Reiss arrived back at the site, at approximately 8:10 a.m., Mr. Kravitsky was getting out of his car.
Mr. Kravitsky had not done the fumigation at 16745 Southwest 300th Street in Homestead, Florida; he was not the pest control operator in charge of the fumigation; and he had not been responsible for clearing the two structures in preparation for the fumigation. Rather, Avery Huff, an employee of Ship Shape Pest Control, had done the fumigation.
Mr. Kravitsky had taken a call from Mr. Lucas at the Ship Shape Pest Control office on April 16, 2004, and Mr. Lucas told him that he was concerned because there were no warning signs or secondary locks on the structure that had been fumigated. Mr. Kravitsky telephoned Mr. Huff, who told him that the job had been "left completely legal."2 Mr. Kravitsky asked Mr. Huff to return to Homestead and meet with the inspector, but Mr. Huff refused. Mr. Kravitsky, therefore, went to the site on April 17, 2004, to check on the job.
When Mr. Reiss walked up to Mr. Kravitsky at approximately 8:00 a.m. on April 17, 2004, Mr. Kravitsky had just gotten out of his car. Mr. Kravitsky and Mr. Reiss walked around to the back of the house, and Mr. Reiss observed that the door to the shed was open and that a man was standing near the shed. It was Mr. Reiss's impression that the man lived in the shed but did not want anyone to know this.
Mr. Kravitsky was told by the man, who identified himself as "Mr. Lugo," that the PVC pipe connected the two structures. Mr. Kravitsky was very concerned that the man might have been hurt if he had been in the shed during or shortly after the fumigation, but the man appeared to both Mr. Kravitsky and Mr. Reiss to be in fine health.
Mr. Kravitsky turned on his interscan, which is a device used in the pest control industry to measure very small amounts of Vikane gas. In 2003-2004, it was considered safe for people to enter buildings when the level of Vikane gas had decreased to five parts per million, and the interscan was used to measure such small quantities of gas. While Mr. Kravitsky's interscan was warming up, a process that takes about 10 minutes, Mr. Kravitsky spoke with Mr. Lugo, who allowed Mr. Kravitsky to go into the shed to check the amount of Vikane gas with the interscan device.
Mr. Reiss noted that a label on Mr. Kravitsky's interscan showed that it had been recalibrated on April 15, 2004, and, before Mr. Kravitsky took the device into the shed, Mr. Reiss observed that the reading on the meter was "zero," which indicated that the device was not detecting any Vikane gas. Mr. Reiss was taking pictures during the entire time he was at the fumigation site, and Mr. Lugo told Mr. Reiss he did not want any pictures taken of the inside of the shed.
Mr. Lugo, therefore, refused to allow Mr. Reiss into the shed, and Mr. Reiss was not able to observe the reading on
Mr. Kravitsky's interscan while he was in the structure.
When Mr. Kravitsky emerged from the shed, he told Mr. Reiss that the interscan showed there was no Vikane gas in the shed. Mr. Reiss glanced at the meter when Mr. Kravitsky emerged from the shed, and it appeared to him that the meter reading was close to "zero." Mr. Kravitsky also did an interscan reading in the main structure, and he told Mr. Reiss that the reading also showed no Vikane gas. In actuality,
Mr. Kravitsky's interscan showed that the level of Vikane gas in the shed was three parts per million, which indicated that the pipe did connect the two structures and that the person preparing the site for fumigation failed to include the shed.
After Mr. Kravitsky and Mr. Reiss finished at the fumigation site, Mr. Kravitsky offered to buy Mr. Reiss lunch.
Mr. Reiss refused lunch but told Mr. Kravitsky he could buy him an iced tea at a nearby Dunkin' Donut shop. Mr. Kravitsky ordered coffee, and he and Mr. Reiss talked about Mr. Reiss's vacation. Mr. Kravitsky excused himself and went to the men's room. When he came back and sat down, he pushed a matchbook across the table to Mr. Reiss, telling Mr. Reiss that he had some matches for him. The matchbook actually contained five
$100 bills that Mr. Kravitsky had folded inside the matchbook. Mr. Reiss did not open the matchbook, but he was able to see that there was money inside. He pushed the matchbook back to Mr. Kravitsky and told him that he could not accept money.
Mr. Kravitsky offered the money to Mr. Reiss on April 17, 2004, to "make him happy."3 According to
Mr. Kravitsky, Mr. Reiss had been threatening for the previous year to send him to prison if he committed even the smallest violation of the pest control laws and regulations.4
Mr. Kravitsky, who was on probation at the time, was very worried about Mr. Reiss's threats.
On April 18, 2004, Ship Shape Pest Control sent a Fumigation Notice to the Department's Bureau of Entomology and Pest Control in Boynton Beach, Florida, indicating that, at 11:00 a.m. on April 19, 2004, it intended to fumigate a structure located at 279 Southeast 8th Terrace in Deerfield Beach, Florida; that Vikane gas would be used; that Lori Kelley
was the certified operator-in-charge of the fumigation, and that the length of the fumigation would be 36 hours.
The Fumigation Notice was sent by facsimile transmission, and it was picked up by Mr. Reiss. Mr. Reiss intended to go to the fumigation site early on April 20, 2004, and to initiate covert surveillance of the first aeration.
On the afternoon of April 19, 2004, Mr. Kravitsky went to 279 Southeast 8th Terrace to check on the progress of the job. When he arrived, the crew had the structure almost completely wrapped, and almost the entire the tent had been erected. Mr. Kravitsky entered the structure to clear it for fumigation. As he was opening cabinets and checking the building, Mr. Kravitsky discovered a sticker on the water heater that showed that the structure had been fumigated about seven months earlier by a company called Dead Bug Edwards.
Mr. Kravitsky decided that he should not fumigate the structure with Vikane gas since it had been fumigated seven months previously. Also, he had not found any live termites on site and believed that it would be sufficient to treat the structure with borate. He told the crew that the structure was not to be fumigated. However, Mr. Kravitsky thought the tent looked good and, with the Ship Shape Pest Control banner in front of the structure, would be good advertising for the company, so, before he left the site, he told the crew finish
erecting the tent and to close it up. Mr. Kravitsky intended to leave the tent up until the following day.
Mr. Kravitsky went to the Ship Shape Pest Control office the following day, April 20, 2004, which was a Saturday. He wrote in long-hand on the Fumigation Notice that had been sent to the local office of the Department's Bureau of Entomology and Pest Control that the job was to be cancelled and changed to Borate. He added a note: "Advise realtor - fumed 7 months ago Dead Bug Edwards adjust price." Mr. Kravitsky dated the hand-written note "4/20/04," and sent the cancellation notice to the local office of the Department's Bureau of Entomology and Pest Control by facsimile transmittal on the morning of April 20, 2004.5
Mr. Kravitsky called Diane Brito, the realtor who had engaged Ship Shape Pest Control to do the fumigation, from the fumigation site and told her that the structure had previously been fumigated and was still under warranty and that Ship Shape Pest Control would do a treatment with Borate and pick up the Dead Bug Edwards' warranty on the termite fumigation.
Mr. Kravitsky also told Ms. Brito that the price would be reduced because fumigation with Vikane gas was more expensive than a Borate treatment.6
Mr. Reiss arrived at 279 Southeast 8th Terrace at approximately 11:20 a.m. on April 20, 2004, and noted that it
was a three-unit multi-family structure located in a residential neighborhood. He was unable to find a location from which to conduct covert surveillance, so he pulled up in front of the structure. He took out his Tiff meter, which is an instrument that measures the presence of gas in quantities exceeding 50 parts per million. His intent was to determine if there were any major leaks of Vikane gas from the tent, so he walked around the tent taking readings with the Tiff meter and videotaping the site.
Mr. Reiss noted that there was a warning sign on the tent that reflected that the Vikane gas had been injected into the structure at 7:00 p.m. on April 19, 2004. Ms. Kelley and Mr. Kravitsky were both identified on the warning sign as pest control operators in charge.
Although Mr. Reiss found holes in the tent and inserted the Tiff meter into the holes to obtain readings, the Tiff meter did not register any Vikane gas, which Mr. Reiss considered unusual. Mr. Reiss also noted that the hose that would have been used to introduce the Vikane gas into the tent was lying outside the tent. It appeared to Mr. Reiss, from all indications at the site, that the structure had been fumigated; the only indication that it had not been fumigated was the failure of the Tiff meter to register Vikane gas at a level of
50 parts per million or more.
Mr. Reiss called the telephone number shown on the warning sign, and Mr. Kravitsky answered the call. Mr. Reiss told Mr. Kravitsky that there did not seem to be any gas in the building, and he told Mr. Kravitsky to meet him at the fumigation site as soon as possible. Mr. Kravitsky arrived at the site at approximately 12:25 p.m. Mr. Kravitsky did not see Mr. Reiss, but he did see the warning sign that indicated that the structure had been fumigated the previous evening and that he had done the fumigation. Mr. Kravitsky did not fumigate the structure, even though his name was on the warning sign, and he had no idea who put the sign up. Mr. Kravitsky immediately began warming up his interscan so he could measure the amount of Vikane gas at the site.
Mr. Reiss had waited for Mr. Kravitsky in his car, but he did not see Mr. Kravitsky arrive. When Mr. Reiss saw
Mr. Kravitsky's car parked in the driveway, Mr. Reiss got out of his car and walked up to Mr. Kravitsky. He noticed that
Mr. Kravitsky was already warming up his interscan, and
Mr. Reiss took care to note that the reading on the interscan, as it was warming up, was "zero."
Mr. Kravitsky and Mr. Reiss engaged in a light conversation as Mr. Kravitsky searched for a place to take a reading of the Vikane gas level. Mr. Kravitsky found an opening in the tent and stuck the interscan probe into the hole. The
reading on the interscan was "zero," indicating that no Vikane gas had been detected. Mr. Kravitsky checked several other openings in the tent, and the interscan continued to register "zero."
After first telling Mr. Reiss that he intended to leave the tent up until the next morning, April 21, 2004, which was a Sunday. Mr. Kravitsky did not want to remove the tent in Mr. Reiss's presence because he was afraid that the inside of the structure had not been properly prepared for fumigation and that Mr. Reiss would cite him for a violation of pest control regulations. Mr. Reiss told Mr. Kravitsky that he would be at the site the next morning because he intended to be present when the tent was taken down, Mr. Kravitsky admitted to Mr. Reiss that he had told the residents that they could return to the structure that night. Mr. Reiss arranged to meet Mr. Kravitsky at the structure at 2:00 p.m. so Mr. Reiss could observe
Mr. Kravitsky go through the aeration procedure.
Even though Mr. Kravitsky knew that the structure had not been fumigated, he went through the active aeration procedure at approximately 2:00 p.m. on April 20, 2004. According to Mr. Reiss's Fumigation Inspection Report,
Mr. Kravitsky opened the tent in Mr. Reiss's presence; entered the structure wearing a self-contained breathing apparatus and opened the doors and windows. Mr. Reiss observed that warning
signs were on the exterior doors and that the doors also had secondary locks. Mr. Kravitsky completed the one-hour active aeration and replaced the warning signs and secondary locks on the exterior doors. These precautions were not necessary, however, because no Vikane gas had been introduced into the structure.
Mr. Kravitsky was extremely worried that Mr. Reiss would cite him for a violation of pest control laws or regulations and that the citation would interfere with the sale of Ship Shape Pest Control, which he was trying to negotiate at the time, or would result in the revocation of his probation. Mr. Kravitsky described himself as confused and uncertain about how to handle the situation; he just wanted to avoid having
Mr. Reiss cite him for a violation. Mr. Kravitsky, therefore, tried to "dance through without getting a violation" and wanted to "feel out" Mr. Reiss to find out how much he knew about the fumigation.7 Mr. Kravitsky avoided telling Mr. Reiss that the structure had not been fumigated, and he told Mr. Reiss that he would have to check with the certified pest control operator-in- charge to find out why there was no Vikane gas inside the tent. By his own admission, Mr. Kravitsky behaved as though he believed the structure had been fumigated with Vikane gas. At some point, however, Mr. Kravitsky did tell Mr. Reiss that he had found a sticker in the structure showing that the structure
had been fumigated approximately seven months prior to
April 2004 and that no Vikane gas had been used to fumigate the structure.8
Although not mentioned in the report Mr. Reiss prepared of the fumigation aeration inspection, Mr. Reiss and Mr. Kravitsky had a conversation at the fumigation site on April 20, 2004, that Mr. Reiss inadvertently recorded on the audio of his video camera.9 During this conversation,
Mr. Kravitsky admitted to Mr. Reiss that he had lied to him on April 17, 2004, when he told Mr. Reiss that the reading
Mr. Kravitsky took in the shed showed no Vikane gas.
Mr. Kravitsky admitted that the interscan registered Vikane gas in the shed at three parts per million, a quantity that does not pose a risk to humans.
Mr. Kravitsky also offered to give Mr. Reiss "an envelope" during this April 20, 2004, conversation. According to Mr. Kravitsky, his reference to "an envelope" was a direct reference to the incident that took place in April 2003. In any event, Mr. Kravitsky offered Mr. Reiss "an envelope" on
April 20, 2004, in hopes that Mr. Reiss would not cite him for a violation of pest control laws or regulations with respect to the fumigation that was to have taken place at 279 Southeast 8th Terrace. Mr. Reiss, however, did not respond to Mr. Kravitsky's offer during that conversation.10
On June 16, 2004, Mr. Kravitsky pleaded guilty to one count of "failing to refrain from the law," and his probation was revoked by the United States District Court for the Southern District of Florida. The charge related to having offered
Mr. Reiss unlawful compensation. Mr. Kravitsky was sentenced to
10 months' in prison.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).
In DOAH Case Nos. 04-4061 and 06-0132, the Department has stated its intention to deny Mr. Kravitsky's applications to renew his pest control operator certificate for 2004 and 2005, and in DOAH Case No. 06-0414, the Department has stated its intention to deny the application of Sears Pest Control d/b/a Ship Shape Pest Control for a pest control employee identification card for Mr. Kravitsky. Although an applicant for a license has the ultimate burden to prove entitlement to the license by a preponderance of the evidence, the Department must establish by a preponderance of the evidence that the applicant committed the specific acts of misconduct on which it based its preliminary decision to deny the application. See Department of Banking and Finance v. Osborne Stern and Co., 670
So. 2d 932, 934-35 (Fla. 1996); M.H. v. Dep't of Children & Family Servs., 977 So. 2d 755 (Fla. 2d DCA 2008)("[I]n a license application proceeding, the agency has the burden of proving specific acts of misconduct by a preponderance of the evidence if it seeks to deny a license application on that ground.").
Thus, although Mr. Kravitsky has the ultimate burden of proof in these cases, the Department must prove its allegations against Mr. Kravitsky by a preponderance of the evidence.
The Department bases its preliminary decisions to deny Mr. Kravitsky's license renewal and identification card applications on the identical charges, that Mr. Kravitsky violated Section 482.161(1)(d), (e), and (g), Florida Statutes (2004).11 Section 482.161(1), Florida Statutes (2004), provides in pertinent part:
The department may . . . deny the application for licensure or licensure renewal of, a licensee, certified operator, limited certificateholder, identification cardholder, or special identification cardholder or any other person, . . .
in accordance with chapter 120, upon any of the following grounds:
* * *
Conviction in any court in any state or in any federal court of a felony, unless civil rights have been restored.
Knowingly making false or fraudulent claims with respect to pest control; knowingly misrepresenting the effects of materials or methods used in pest control;
or knowingly failing to use materials or methods suitable for the pest control undertaken.
* * *
(g) Failure to give to the department, or authorized representative thereof, true information upon request regarding methods and materials used, work performed, or other information essential to the administration of this chapter.
The Department has proven by a preponderance of the evidence that Mr. Kravitsky pleaded guilty to a felony in federal court in 2001 and that his civil rights had not been restored at the times pertinent to this proceedings or at the time of the final hearing. The Department has, therefore, proven that Mr. Kravitsky's applications for license renewal and for an employee identification card may be denied on this ground pursuant to Section 482.161(1)(d), Florida Statutes.
This is so even though the Department did not state its intention to deny Mr. Kravitsky's application for license renewal for 2004 until September 28, 2004. Section 482.183, Florida Statutes, provides that "[a] person may not be charged with a violation of this chapter or any rule adopted pursuant to this chapter more than 3 years after the date of the violation" and that "a charge of violation is considered to have been made upon the issuance of a notice or citation by the department charging such violation." By its nature, however, a felony
conviction can serve as a ground for denying an application for a license as a pest control operator or for a pest control identification card no matter when the conviction occurred, as long as the applicant's civil rights have not been restored.
The Department failed to prove by a preponderance of the evidence that, on April 20, 2004, Mr. Kravitsky knowingly made a false or fraudulent claim with respect to the use of Vikane gas to fumigate the structure at 279 Southeast
8th Terrace in Deerfield Beach, Florida; knowingly misrepresented the effects of materials or methods used in the fumigation; or knowingly failed to use materials suitable for the pest control undertaken. Rather, the evidence, and specifically the contemporaneously completed report of
Mr. Reiss, establishes that Mr. Kravitsky made Mr. Reiss aware that no Vikane gas has been introduced into the structure.
Although the evidence does not establish that Mr. Kravitsky advised Mr. Reiss that he intended to use a Borate treatment on the structure, this omission does not constitute a knowingly false or misleading statement.12 The Department has, therefore, failed to prove by a preponderance of the evidence that
Mr. Kravitsky violated Section 482.161(1)(e), Florida Statutes, with regard to the April 20, 2004, incident at 279 Southeast 8th Terrace in Deerfield Beach, Florida.
The Department has proven by a preponderance of the evidence that Mr. Kravitsky lied to Mr. Reiss regarding the level of Vikane gas registered by his interscan when he tested the air in the shed behind the structure fumigated at 16745 Southwest 300th Street in Homestead, Florida. Although the level of Vikane gas was low and, at the time of the measurement, was not a danger to humans, the mere presence of Vikane gas in the shed indicated that the shed and the main structure were connected by the PVC pipe observed by Mr. Reiss and raised the possibility that the level of Vikane gas in the shed had been higher at the time of the fumigation. The Department has, therefore, proven by a preponderance of the evidence that
Mr. Kravitsky's applications for license renewal and for an employee identification card may be denied because he violated Section 482.161(1)(d) and (g), Florida Statutes, by failing to give Mr. Reiss true information regarding the presence of Vikane gas in the shed and for making false statements regarding the reading on the interscan.
The Department included in its notices of intent to deny Mr. Kravitsky's applications for license renewal and for an employee identification card allegations that Mr. Kravitsky attempted to bribe Mr. Reiss to delay filing reports that may have cited Mr. Kravitsky for violations of the pest control laws and regulations. Mr. Kravitsky admitted that, on three
occasions, he had offered Mr. Reiss money in the hopes that Mr. Reiss would not cite him for violations of the laws and regulations, and these actions cannot be excused even if Mr. Reiss in fact threatened Mr. Kravitsky and/or solicited
Mr. Kravitsky to pay him money. Mr. Kravitsky's offer of money to Mr. Reiss endangered the public safety insofar as he attempted to persuade a public employee not to report violations of the law that could cause injury or death.
Section 482.241, Florida Statutes, provides that "[t]he provisions of this chapter shall be liberally construed in order to effectively carry them out in the interest of the public and its health, welfare, and safety." The Department is given discretion in Section 482.161(1), Florida Statutes, to deny an application for renewal of a pest control operator certificate and to deny an application for a pest control employee identification card when an applicant has committed any of the acts specified in Section 482.161(1)(a)-(j), Florida Statutes. In this case, because Mr. Kravitsky's actions not only violated Section 482.161(1)(d)(e) and (g), Florida Statutes, but potentially endangered public health and welfare, the Department should use its discretion to deny Mr. Kravitsky's applications at issue herein.
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 in DOAH Case No. 04-4061 denying Larry Kravitsky's application for renewal of his pest control operator certificate JF 9079 for 2004; in DOAH Case
No. 06-0132 denying Larry Kravitsky's application for renewal of his pest control operator certificate JF 9079 for 2005; and in DOAH Case No. 06-0414 denying the application of Sears Pest Control d/b/a Ship Shape Pest Control for a pest control employee-identification card for Larry Kravitsky.
DONE AND ENTERED this 30th day of July, 2009, in Tallahassee, Leon County, Florida.
PATRICIA M. HART
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 30th day of July, 2009.
ENDNOTES
1/ It was Mr. Reiss's practice to park his vehicle in a hidden location so he could videotape while fumigation tents were being taken down and while the aeration procedures were conducted.
2/ Respondent's Exhibit P at page 22.
3/ Respondent's Exhibit P at page 34.
4/ According to Mr. Kravitsky, Ship Shape Pest Control had prepared to fumigate a structure located on Sample Road in Broward County, Florida. Mr. Reiss refused to allow him to fumigate the structure, claiming that it was too close to another building. According to Mr. Kravitsky, he put an envelope containing $500.00 in cash in a plastic bag and hung it in a tree at the fumigation site on Sample Road for Mr. Reiss to retrieve. Mr. Kravitsky related that Mr. Reiss refused to take the bag from the tree, so Mr. Kravitsky took the bag from the tree and put it on the floor of Mr. Reiss's car. According to Mr. Kravitsky, after he left the envelope in Mr. Reiss's car, Mr. Reiss allowed him to fumigate the structure at the Sample Road site. Mr. Reiss denied having received an envelope containing money from Mr. Kravitsky on this occasion, but
Mr. Kravitsky believed that Mr. Reiss had taken the envelope containing $500.00.
5/ There is nothing on the notice, or any other documentation in the record, to support Mr. Kravitsky's testimony that he sent the cancellation notice to the local office on April 20, 2004.
In any event, Mr. Reiss would not have seen the cancellation notice on April 20, 2004, because he apparently worked in the field that day.
6/ There is some uncertainty as to the date on which
Mr. Kravitsky advised Ms. Brito of the cancellation of the fumigation. Mr. Kravitsky recalled telephoning Ms. Brito from the fumigation site on April 19, 2004; in her testimony at the final hearing, Ms. Brito testified that Mr. Kravitsky had contacted her on April 18 or 19, 2004; and in a memorandum dated October 5, 2004, Ms. Brito noted that Mr. Kravitsky had notified her of the cancellation on April 22, 2004, which was a Monday.
Regardless of when he notified Ms. Brito, the record is clear that Mr. Kravitsky decided to cancel the fumigation on the afternoon of April 19, 2004.
7/ Respondent's Exhibit P, Deposition of Larry Kravitsky, at page 105.
8/ In his testimony at the final hearing, Mr. Reiss repeatedly and emphatically denied that Mr. Kravitsky ever told him that no Vikane gas had been introduced into the structure at 279 Southeast 8th Terrace in Deerfield Beach, Florida, or that no fumigation had taken place. Transcript at pages 49-52. For his part, Mr. Kravitsky could not recall whether he had told
Mr. Reiss that the structure had not been fumigated with Vikane gas, although he testified that he "believes" he may have told Mr. Reiss that there had been no fumigation. Respondent's Exhibit P at pages 105-06. It is noted, however, that, in the Report of Investigation dated April 20, 2004, and prepared by Mr. Reiss, Mr. Reiss stated that Mr. Kravitsky "tried to explain his reasoning for not putting in Vikane." Respondent's
Exhibit F at page 2. It would appear, therefore, that
Mr. Kravitsky did, in fact, tell Mr. Reiss on April 20, 2004, that no fumigation had taken place.
9/ Although the Department offered the tape and a transcript of the tape into evidence at the final hearing, the undersigned ruled that these items were inadmissible because the recording had taken place without Mr. Kravitsky's consent or actual knowledge. The findings of fact relating to the conversation between Mr. Reiss and Mr. Kravitsky are derived from their testimony at the final hearing and in deposition, respectively.
10/ The Department later put together a sting operation designed to catch Mr. Kravitsky offering Mr. Reiss a bribe. Although there was a great deal of testimony at the final hearing regarding the sting operation, the manner in which the operation was conducted by Department personnel is not relevant to the violations alleged by the Department against Mr. Kravitsky. In addition, Mr. Kravitsky's contention that he was entrapped into offering Mr. Reiss a bribe in June 2004, during the sting operation, is irrelevant in that, first, Mr. Kravitsky admitted offering Mr. Reiss money on April 17, 2004, and offering to give Mr. Reiss "an envelope" on April 20, 2004, which was understood to be an offer by Mr. Kravitsky to pay Mr. Reiss a sum of money.
11/ Because all charges are based on Mr. Kravitsky's activities in 2004, except for his felony conviction in 2001, references to the Florida Statutes herein will be to the 2004 edition unless otherwise indicated.
12/ Much of Mr. Kravitsky's testimony regarding the events of April 20, 2004, was vague, and he often indicated in answering questions posed by the Department's counsel that he "could not recall" or that "he may have" or "he could not remember." On the other hand, much of Mr. Reiss's testimony at the final hearing, especially regarding Mr. Kravitsky's representations regarding the use of Vikane gas in the structure at
279 Southeast 8th Terrace in Deerfield Beach, Florida, was directly contradicted by written reports he prepared in the course of his employment at or about the time of the incident reported.
COPIES FURNISHED:
David W. Young, Esquire Department of Agriculture and
Consumer Services
Mayo Building, Suite 520
407 South Calhoun Street Tallahassee, Florida 32399-0800
Charles M. Kramer, Esquire Rogers, Morris & Ziegler LLP 1401 East Broward Boulevard Fort Lauderdale, Florida 33301
Richard D. Tritschler, General Counsel Department of Agriculture and
Consumer Services
407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
Charles H. Bronson, Commissioner Department of Agriculture and
Consumer Services
The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Christopher E. Green, Chief Bureau of License and Bond Division of Marketing
407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800
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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 04, 2009 | Agency Final Order | |
| Jul. 30, 2009 | Recommended Order | Petitioner made false statements regarding amount of fumigant in structure and was convicted of felony without civil rights being restored. Applications for license renewal and employee identification card should be denied. |
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES vs WILBUR H. WINTERS, JF1464, 04-004061 (2004)
LARRY KRAVITSKY vs DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, 04-004061 (2004)
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES vs LARRY KRAVITSKY, 04-004061 (2004)
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES vs LARRY KRAVITSKY, 04-004061 (2004)
