STATE OF FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Petitioner, Vv. Agency Clerk # B10999 BLE Case # 317-428-6010 MS Wilbur H. Winters, JF 1464, Respondent. / AD STRATIVE COMPLAINT The Department of Agriculture and Consumer Services (“Department”) conducted an investigation and found the following violations(s): ' On September 19, 2017, the Department received a complaint from the homeowner of 9821 SW 16% Street, Pembroke Pines, FL 33025 regarding a Wood Destroying Organism Inspection Report (FDACS form 13645) issued by Ship Shape Pest Control, JB123241. The complainant alleged Ship Shape Pest Control issued a Wood Destroying Organism Inspection Report (FDACS form 13645) noting evidence of wood destroying organisms without performing a wood destroying organism inspection of the home. During the course of the investigation into the complaint, questions arose as to whether Wilbur Winters (JF 1464) who is currently listed as the Certified Operator in Charge of Ship Shape Pest Control is satisfying all of his duties as Certified Operator in Charge. On October 05, 2017, the inspectors met with Larry Kravitsky (Dispatcher) of Ship Shape Pest Control. Mr. Kravitsky identified himself in the affidavit as the General Manager and Dispatcher of the firm. Mr. Kravitsky went on to state the wood destroying organism inspection of 9821 SW 16" Street, Pembroke Pines, FL 33025 was performed by Nikolae “Nik” Vasquez (JE186079) who has been an employee of Ship Shape Pest Control for 5-6 years. Mr. Kravitsky went on to state the inspection was performed on August 02, 2017, and Mr. Vasquez was trained by Eugene (Agafonov). Mr. Kravitsky further stated Wilbur Winters, who is the Certified Operator in Charge, is only there once a month and was not aware of the inspection that day. Mr. Kravitsky acknowledged Mr. Vasquez did not have a wood destroying organism inspector endorsement on his pest control identification card. On October 05, 2017, the inspectors also met with Nikolae Vasquez. Mr. Vasquez speaks limited English and provided an affidavit in Spanish that was later translated by the inspector. Mr. Vasquez stated he has worked for Ship Shape Pest Control approximately seven years and when he started with the firm he was trained by Kirk. Mr. Vasquez went on to state his job entails performing pest control and wood destroying organism inspections, but that he had not done any wood destroying organism inspections in months. Mr. Vasquez explained that when heidoes do wood destroying organism inspections he calls Larry Kravitsky and tells him what was found. Mr. Vasquez stated everything goes through Larry Kravitsky. Mr. Vasquez further elaborated that when he performs a wood destroying organism inspection, he writes everything on a service ticket and Larry Kravitsky writes up the Wood Destroying Organism Inspection Report (FDACS form 13645). Mr. Vasquez stated he does not fill out the Wood Destroying Organism Inspection Report (FDACS form 13645), but he does post a Notice of Inspection on the water heater. On October 12, 2017, the inspectors returned to Ship Shape Pest Control and met with the Certified Operator in Charge, Wilbur Winters (JF 1464), and President of Sears Pest Control, Inc. d/b/a Ship Shape Pest Control, Alan Kravitsky. Mr. Winters stated in an affidavit that he has been the Certified Operator in Charge of Ship Shape for approximately six to seven years. Ship Shape Pest Control does a lot of wood destroying organism inspections reports and a lot of times they are rushed. Mr. Winters further stated he is not ok with the technician writing up service tickets, giving them to Larry Kravitsky to write up the inspection report, and then signing the completed report. Mr. Winters went on to state Larry Kravitsky is the General Manager/Dispatcher and when he has been in the office, technicians call in, Mr. Kravitsky writes up the wood destroying organism inspection report while the technician is on the phone, and, at times, gives the technician another address for a wood destroying organism inspection if they are in the area. Mr. Winters was unsure whether the technician meets the home inspectors every time or if the service tickets are kept. Mr. Winters explained he knows Nikolae Vasquez (JE186079) because he speaks Spanish, couldn’t recall who trained Mr. Vasquez, and didn’t recall interacting with Mr. Vasquez, but stated he must have been in the last training. Regarding the wood destroying organism inspection of 9821 SW 16" Street, Pembroke Pines, FL 33025 on August 02, 2017, Mr. Winters stated to his knowledge, Nikolae Vasquez was late on the day of the inspection, missed the home inspector, only looked around outside, and did not post a Notice of Inspection on the water heater. Mr. Winters further stated per the Alliance home inspection, termite evidence was observed, treatment was recommended, and that Alliance Home Inspections provided pictures of a window they said showed evidence of termites. Alan Kravitsky identified himself as the owner of Ship Shape Pest Control. Mr. Kravitsky stated in an affidavit that he was aware that his brother, Larry Kravitsky, transcribes information from service ticket notes onto Wood Destroying Organism Inspection Reports (FDACS form 13645) and then the technician is signing the report. Mr. Kravitsky went on to state that he is aware Mr. Winters is coming to the office to do annual training in December and he is also coming to the office as needed because he recently had surgery. The inspectors issued Mr. Winters a Request for Information on October 12, 2017, requesting Wood Destroying Organism Inspection Reports (FDACS form 13645) completed by Mr. Vasquez during the last three years, service tickets from which inspection reports were transcribed, and, if any of those documents were unavailable, a written statement explaining why the documents were unavailable, Mr. Winters and Ship Shape Pest Control did not submit the requested information to the Bureau of Inspection and Incident Response. On October 12, 2017, Larry Kravitsky provided the inspectors with a second affidavit in which he stated he only keeps the service tickets from technicians if there is something unusual on the inspection report. Otherwise, he throws the notes/service tickets away. On December 22, 2017, a Request for Information was delivered to Ship Shape Pest Control via United States Postal Service Certified Mail No. 7016 0910 0001 6358 4797 requesting all Wood Destroying Organism Inspection Reports, including reports completed on FDACS form 13645 as well as annual re- inspection reports for wood destroying organism contract renewals, for all wood destroying organism inspections performed by Nikolae Vasquez (JE186079) in the last three years, all service tickets and inspector notes used to transcribe wood destroying organism inspection reports in the last three years, and all training records documenting any and all training provided to Nikolae Vasquez (JE186079) by Ship Shape Pest Control, Wilbur Winters (JF1464), or any other employee of Ship Shape Pest Control including training to obtain the wood destroying organism inspector endorsement. Ship Shape was supposed to provide the requested information within 14 days and, as of the date of this letter, the Department has yet to receive a response from Ship Shape Pest Control. On January 10, 2018, an inspector from the Bureau of Inspection and Incident Response met with Wilbur Winters (JF 1464) at his home in Lake Worth, FL. Mr. Winters described his duties as Certified Operator by stating he calls the office every morning to see if he is needed and if there is a problem that arises Larry Kravitsky will call him. Mr. Winters stated he holds training sessions annually with the most recent one in December 2017 and Larry Kravitsky mails him a paycheck. Mr. Winters affirmed he does not work anywhere else. Mr. Winters further stated he does not go into the Ship Shape Pest Control! office on a weekly basis and that he generally gets to the office about three times per month depending on issues/problems. Mr. Winters went on to state Nikolae Vasquez was not present at the annual training session he held in December 2017 and that he provided Mr. Vasquez with his initial training in June 2011, but couldn’t recall whether it was classroom or field training. Mr. Winters explained that he is aware Eugene (Agafonov) takes technicians out for field training during the initial five days. Mr. Winters stated he does not speak Spanish and does not know if Mr. Agafonov speaks Spanish or not. Mr. Winters told the inspector he would have Larry Kravitsky email the photograph from Alliance Home Inspections that shows a window with evidence of termites at the complainant’s home. Despite Mr. Winter’s promise to provide the photograph of termite damage around a window he implied was the basis of the Wood Destroying Organism Inspection Report (FDACS form 13645) issued by Ship Shape Pest Control and was allegedly provided to Ship Shape Pest Control by Alliance Home Inspections was never submitted to the inspectors investigating this complaint nor does the photograph appear in the home inspection report issued by Alliance Home Inspections. Section 482.021(5), Florida Statutes, defines “Certified operator in charge” as: A certified operator: (a) Whose primary occupation is the pest control business; (b) Who is employed full time by a licensee; and (c) Whose principal duty is the personal supervision of the licensee's operation in a category or categories of pest control in which the operator is certified. On January 11, 2018, the inspector met with Nikolae Vasquez (JE186079) a second time. Mr. Vasquez stated in an affidavit that he has no contact with Wilbur Winters and the dates of June 07-11, 2011, when Mr. Winters supposedly trained him from 9-5pm every day, he never went out with him to do field training. Mr. Vasquez stated Mr. Winters sometimes gave training in the office, but never a whole day. Mr. Vasquez explained he was not present at the annual training held by Mr. Winters in December 2017 because he was not informed there would be a training session held. Mr. Vasquez stated it has been about two years since he has seen Mr. Winters. Mr. Vasquez stated he works from 7am -4pm and only ever sees Larry Kravitsky in the office in the morning, no one is there in the afternoon when he returns, and he leaves 3 his paperwork on the staircase by Alan Kravitsky’s office. Mr. Vasquez explained he was trained in English and he understands a little, but it’s not perfect and when he has a problem he prefers to be spoken to in Spanish so he can understand everything. On January 18, 2018, the inspector met with Eugene Aganofov (JE128316). Mr. Aganofoy stated he was not Nikolae Vasquez’s trainer, but that he did take him out several times. Mr. Aganofov further stated he is not the trainer, but he knows more than all the other pest control identification card holders as he is a Certified Operator in the Genera] Household Pest and Rodent Control and Fumigation pest control categories. Mr. Aganofov went on to state he sometimes meets Mr. Vasquez or other technicians in the field and he has worked with Mr. Vasquez several times, but he never trained Mr. Vasquez from 9-5pm for five days nor did he go out with Mr. Vasquez for a certain amount of time. Mr. Aganofov stated he is familiar with Wilbur Winters and stated he sees him twice a year. Mr. Aganofov concluded by stating he can communicate with Mr. Vasquez because they both learned English. Section 482.091(2)(a) and (e), Florida Statutes, states: (2)(a) An identification cardholder must be an employee of the licensee and work under the direction and supervision of the licensee's certified operator in charge and shall not be an independent contractor. An identification cardholder shall operate only out of, and for customers assigned from, the licensee's licensed business location. An identification cardholder shall not perform any pest control independently of and without the knowledge of the licensee and the licensee's certified operator in charge and shall perform pest control only for the licensee's customers. (e) An identification cardholder shall consult regularly with the licensee's certified operator in charge concerning: 1, The selection of proper and correct chemicals for the particular pest control work to be performed: 2. The safe and proper use of the particular pesticides applied; and 3. The correct concentrations and formulations of pesticides used for the various types of pest control work performed. Section 482.091(9), Florida Statutes, states: For every employee who performs inspections for wood-destroying organisms pursuant to s, 482.226, the licensee or certified operator in charge must apply for an identification card that identifies that employee as having received the special training specified in this subsection in order to perform inspections pursuant to s. 482.226. The application for such identification card must be accompanied by an affidavit, signed by the prospective identification cardholder and by the licensee or certified operator in charge, which states that the prospective identification cardholder has received training in the detection and control of wood-destroying organisms, including but not limited to training in: (a) The biology, behavior, and identification of wood-destroying organisms with particular emphasis on ones common in this state and the damage caused by such organisms; (b) The inspection forms to be used to report the finding; and (c) Applicable federal, state, and local laws or ordinances. Upon review of this case, the Bureau of Licensing and Enforcement has determined Mr. Winters is not satisfying his duties as Certified Operator in Charge of Ship Shape Pest Control. As Certified Operator in Charge, Mr. Winters’s principle duties at Ship Shape Pest Control are the responsibility for, personal 4 supervision of, and participation in the firm’s pest control activities. It is apparent to the Bureau of Licensing and Enforcement, based on Mr. Winters own statements and the statements of two of the pest control identification card holders who are supposed to be under Mr. Winters’ direct supervision, that Mr. Winters is rarely at Ship Shape Pest Control, has no contact with pest control identification card holders, and appears to only be the Certified Operator in Charge on paper. Mr. Agafonov stated he only sees Mr. Winters twice a year, Mr. Vasquez stated he has not seen Mr. Winters in approximately two years and has no contact with Mr. Winters, and Mr. Winters himself stated he only goes to Ship Shape Pest Control on an as needed basis, generally a few times per month, and only does training once a year. Larry Kravitsky stated Mr. Winters is at Ship Shape Pest Control once a month. In practice, it appears Larry Kravitsky, who is not a credentialed pest control applicator and is ineligible to receive any pest control credentials, is filling the role of Certified Operator in Charge of Ship Shape Pest Control as everything goes through him and he makes all day to day operational decisions. Section 482.121(1) and (3), states: (1) A certified operator may not allow her or his certificate to be used by a licensee to secure or keep a license unless: (a) She or he is in charge of the pest control activities of the licensee in the category or categories covered by her or his certificate; (b) She or he is a full-time employee of the licensee; and (c) Her or his primary occupation is with the licensee. (3) If a certificate is used in violation of this section, the department may revoke the license of the pest control business or the certified operator's certificate, or both such license and certificate. Section 482.152, Florida Statutes, states: A certified operator in charge of the pest control activities of a licensee shall have her or his primary occupation with the licensee and shall be a full-time employee of the licensee, and her or his principal duty shall include the responsibility for the personal supervision of and participation in the pest control activities at the business location of the licensee as the same relate to: (1) The selection of proper and correct chemicals for the particular pest control work performed. (2) The safe and proper use of the pesticides used. (3) The correct concentration and formulation of pesticides used in all pest control work performed. (4) The training of personnel in the proper and acceptable methods of pest control. (5) The contro] measures and procedures used. (6) The notification of the department of any accidental human poisoning or death connected with pest contro! work performed on a job she or he is supervising, within 24 hours after she or he has knowledge of the poisoning or death. Section 482.161(1)(e) and (g), Florida Statutes, states: (1) The department may issue a written warning to or impose a fine against, or 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, or may suspend, revoke, or deny the issuance or renewal of any license, certificate, 5 limited certificate, identification card, or special identification card that is within the scope of this chapter, in accordance with chapter 120, upon any of the following grounds: (e) 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. Section 5E-14.149(3)(d), (), and (1), Florida Statutes, states: (3) Category of Violations. Minor violations are all violations other than those classified as major violations. Major violations are violations where: (d) The licensee, certificate holder, permit holder or applicator deliberately makes false or fraudulent claims with respect to pest control, deliberately misrepresents the effects of materials or methods used in pest control, or deliberately fails to use materials or methods suitable for the pest control undertaken. (f) The licensee, certificate holder, permit holder or applicator fails to give the Department or representative true information in response to a written request within 14 business days regarding methods and materials used, work performed, or other information essential to the administration of Chapter 482, F.S. ()) A licensee or certified operator fails to comply with Section 482.091(1) or (2), F.S. Section SE-14.149(9)(a), Florida Administrative Code, states: Suspension will be imposed when: 1. The violation results in death of humans or domestic animals or pets, or injury requiring hospitalization to humans. 2. The violation results in serious harm to an ecological system, or contamination of water or soil requiring corrective action or monitoring to protect human health or the environment. 3. The compliance record of the violator shows two or more prior violations for similar major violations within the last three (3) years. 4. The licensee, certificate holder, permit holder or applicator has habitual intemperance or addiction to narcotics to the extent that it contributes substantially to the occurrence of violations of Chapter 482, F.S. 5. A person has obtained licensure of any kind under Chapter 482, F.S., and the Department subsequently determines that the person that is the holder of the licensure falls into any of the categories set forth in paragraph (6)(c) above that would be cause for denying licensure. 6. A licensee or certificate holder has been found by the Department to be in violation of Section 482.121, F.S. 7, When a permit holder pursuant to Section 482.0815(4) or (6), F.S., meets the conditions therein. Count 1- Wilbur Winters, JF 1464, is in violation of Sections 482.121(1) & (3), 482.152, and 482.091(2)(a) and (e), Florida Statutes, and Sections SE-14.149(3)() and 5E-14.149(9){a), Florida 6 Administrative Code, for misuse of certificate and failure to fulfill his certified operator duties as Certified Operator in Charge of Ship Shape Pest Control, JB123241. Mr. Winters does not personally supervise or participate in the pest control activities of the firm and therefore, is not in charge of the firm’s pest control activities as set forth in the Florida Statutes. The pest control identification card holders employed by Ship Shape Pest Control, JB123241, do not regularly consult with Mr. Winters nor do they receive all of the required training from Mr. Winters or work under the direct supervision of Mr. Winters as he is only in the Ship Shape Pest Control, JB123241, office 1-3 times per month and is unaware of the firm’s day to day pest contro! operations. Count 2- Wilbur Winters, JF 1464, is in violation of Section 482.161(1)(g), Florida Statutes, and Section SE-14.149(3)(f), Florida Administrative Code, for failure to provide Wood Destroying Organism (WDO) Inspection Reports (FDACS 13645) completed by Nikolae Vasquez (JE186079) within the last three years and service tickets from which inspection reports were transcribed as requested by the Department in a written Request for Information issued by representatives of the Department on October 12, 2017. Count 3- Wilbur Winters, JF 1464, is in violation of Section 482.161(1)(e), Florida Statutes, and Section 5E-14.149(3)(d), Florida Administrative Code, for knowingly and deliberately providing false information to the Bureau of Inspection and Incident Response on October 12, 2017 regarding Nikolae Vasquez’s (JE186079) involvement in the wood destroying organism inspection of the structure located at 9821 SW 16" Street, Pembroke Pines, FL 33025 on August 02, 2017 as well as the existence of evidence of wood destroying organisras. Mr. Winters provided additional false claims on January 10, 2018, regarding who trained Mr. Vasquez. Wherefore, Petitioner intends to take action pursuant to Section 482.161, Florida Statutes, including, but not limited to a notice of noncompliance, probation, administrative fine, suspension or revocation of license. Dated this a icy of May 2018 Sarah R. Oglesby, Buredii Chief Bureau of Licensing and Enforcement NOTICE OF RIGHTS In accordance with Sections 120.569 and 120.57, Florida Statutes, you have the right to request a formal or informa! hearing and to be represented by counsel or other qualified representative. To request a hearing, you must complete the enclosed Election of Rights form and file it with the Division of Agricultural Environmental Services within 21 days of receipt of this complaint. NOTE: If you request a formal hearing. you must also provide a statement of the material facts alleged in this complaint that you dispute. I Alternatively, you may waive your right to a hearing and settle this matter by signing and returning the attached Stipulation and Settlement. Failure to timely file the Election of Rights form with the Division of Agricultural Environmental Services within 21 days of receipt of this complaint shall be considered a waiver of your right to a hearing and may result in the issuance of a Final Order without any further notice that may impose up to the maximum penalties as authorized by law. SETTLEMENT OFFER At this time, the Department is willing to settle this matter as follows: (a) An admission of violation of Sections 482.091(2)(a) and (2)(e), 482.121(1) and (3), 482.152, and 482.161(1)(e) and (1)(g), Florida Statutes, and Sections SE-14.149(3\4d), (f), and (I) and 5E-14.149(9)(a), Florida Administrative Code; and (b) Suspension of Operator Certificate number JF 1464, issued to Wilbur Winters, for a period of two years and payment of an Administrative Fine in the form of a check or money order made payable to the “Department of Agriculture and Consumer Services” in the amount of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) to resolve this matter; and (c) Your signature affixed on the attached Settlement Agreement; and (d) Receipt by the Department of the settlement documents within 21 days of your receipt of this letter. If this settlement is acceptable, please indicate your acceptance by signing this letter below under Settlement Agreement and return the original of this letter along with all other documents required for settlement in the enclosed envelope within twenty-one (21) days of receipt of this letter. Acceptance of this settlement and the timely return to the Department of all settlement documents will conclude this matter subject to final approval by the Commissioner’s office. FURTHER INFORMATION If you wish to discuss this matter, please contact me at 850-617-7880. CERTIFICATE OF SERVICE Thereby certify that a copy of this Administrative Complaint has been furnished by USPS Certified Mail No, 7017 3380 0000 7550 8435 on this ao2* day of May 2018 to: Wilbur H. Winters, JF1464, 2479 Pinecrest Court, West Palm Beach, FL 33415. Division of Agricultural Environmental Services The Conner Building, No. 8 3125 Conner Boulevard Tallahassee, FL 32399-1650

Docket for Case No: 18-003392