STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-3227

)

CHARBET CHEMICAL COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 25, 1986, in Miami, Florida.

APPEARANCES

For Petitioner: Ronnie H. Weaver, Esquire

Resident Counsel Department of Agriculture

and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301

For Respondent: Morrill M. Turk, President

Charbet Chemical Company 1360 North West 54th Street Miami, Florida 33142

ISSUE PRESENTED

The issues presented for decision herein are (a) whether or not Respondent, Charbet Chemical Company a pesticide producing establishment, unlawfully distributed, sold, or offered for sale or transported a pesticide which was not registered with Petitioner; (b) whether Respondent unlawfully distributed pesticides which were mix-branded and (c) whether Respondent unlawfully refused, after notice, to comply with lawful rules

and orders of Petitioner applicable to pesticide producing establishments.

FINDINGS OF FACT

1. By its ten (10) count amended administrative complaint filed herein mailed February 19, 1986, Petitioner seeks to impose disciplinary sanctions against Respondent, based on alleged conduct, set forth hereinafter in detail, based on authority granted Petitioner pursuant to Sections 487.091(2) and 487.158(2)(e), Florida Statutes.

   
   

2. Respondent, Charbet Chemical Company is a pesticide producing establishment situated at 1360 NW 54th Street in Miami, Florida.

   
   

3. Fazal Haq is a pesticide enforcement specialist employed by Petitioner since 1980. His duties include the inspection of pesticide producing establishments, drawing samples of pesticide products to ensure that they are properly registered, labeled and chemically effective for the purposes which they are distributed or sold.

   
   

4. In keeping with his duties, Enforcement Specialist Haq made a routine inspection of Respondent's establishment on June 5, 1984. On that date, Haq observed the pesticides "Guard," "Alpine Pine Disinfectant," "Kill-Germ," "Bac Zone," and "Pyro- Kil" at Respondent's establishment. All five products were offered for sale and were not registered as pesticides.

   
   

5. During the June 5, 1984 inspection, Enforcement Specialist Haq also obtained samples of the above-referred products. Laboratory analysis revealed that the product "Kill- Germ," when tested by Petitioner using the AOAC /1 use dilution test, failed to kill staphylococcus aureus in fifty of fifty trials.

   
   

6. The second product tested was "Pyro-Kil." Laboratory analysis revealed that the quantity of chemically active ingredients in the product "Pyro-Kil" was 66-82 percent deficient in technical piperonyl butoxide.

   
   

7. Enforcement Specialist Haq's examination of the products "Bac Zone" and "Pyro-Kil" indicates that Respondent did not have the assigned EPA Accession Number affixed to the product labels.

8. On June 5, 1985, Enforcement Specialist Haq collected samples of Respondent's products "Guard," "Alpine Pine Disinfectant," Kill-Germ," "Bac Zone," and "Pyro-Kil." As of June 5, 1985, Respondent had not registered the referenced products with Petitioner despite Petitioner's notice to Respondent of the registration provisions by letter dated February 16, 1982. Respondent has had the referenced products for sale through calendar years 1982 - 1985 and has refused, after notice, to comply with the registration provisions of Chapter 487, Florida Statutes, to wit Sections 487.158(1)(g), and Section 487.041(1), Florida Statutes.

   
   

9. Steven John Rutz, Petitioner's environmental administrator since April, 1983, is in charge of oversight in field operations, case management and implementation of the grant agreements (federal) for Petitioner. Administrator Rutz examined Respondent's registration history for its pesticide products. Respondent's products "Guard," "Alpine Pine Disinfectant," "Kill- Germ," "Bac Zone" and "Pyro-Kil," were not registered when Enforcement Specialist Haq visited Respondent's facility on June 5, 1984. (Petitioner's Composite Exhibit 7).

   
   

   CONCLUSIONS OF LAW_

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

12. Petitioner, Department of Agriculture and Consumer, Services is the state agency charged with the responsibility of regulating pesticide producing establishments and for imposing disciplinary action against such establishments when warranted pursuant to the authority of Chapter 487, Florida Statutes.

    
    

13. Respondent Charbet Chemical Company is a pesticide producing establishment and, as such, is subject to the disciplinary guides of Chapter 487, Florida Statutes. Florida pesticide laws require that pesticides be annually registered and properly labeled. The requirements include displaying on the products container its EPA Accession Number and the content of active ingredients in the product.

    
    

14. Respondent's products "Guard," "Alpine Pine Disinfectant," "Kill-Germ," "Bac Zone" and "Pyro-Kil" are

    pesticides within the meaning of Section 487.021(45), Florida Statutes.

    
    

15. Respondent distributed, sold and offered for sale the above-referenced pesticides during times material and failed to annually register such products as required in violation of Section 487.041(1), Florida Statutes.

    
    

16. Competent and substantial evidence was offered herein to establish that the Respondent failed to register its products "Guard," "Alpine Pine Disinfectant," "Kill-Germ," "Bac Zone," and "Pyro-Kil" as was required pursuant to Section 487.041(1), Florida Statutes, and thereby derivatively violated Section 487.031(1)(a), Florida Statutes.

    
    

17. Respondent's product "Kill-Germ," based on a laboratory analysis by Petitioner, was ineffective in that it failed the AOAC use dilution test. Respondent thereby misbranded "Kill-Germ" in violation of Section 487.031(1)(f), Florida Statutes.

    
    

18. Respondent's product "Pyro-Kil," when tested for the quantity of chemically active ingredients, was found to be deficient in the range from 66 to 82 percent in technical piperonyl butox. Based thereon the active ingredient concentration was found to be less than the quantity stated on the product label and as such was mix-branded in violation of Section 487.031(1)(f), Florida Statutes.

    
    

19. Evidence reveals that when Haq inspected Respondent's facility on June 5, 1984, labels from Respondent's product "Bac Zone" and "Pyro Kil" failed to display their assigned EPA Accession Number. Based thereon, the labels did not include all required information and were therefore mix-branded in violation of Section 487.031(1)(f), Florida Statutes.

    
    

20. Evidence adduced herein reveals that Respondent's products "Guard," "Alpine Pine Disinfectant," "Bac Zone, N Pyro- Kil," and "Contact" were not properly registered pursuant to Section 487.158(1)(g), Florida Statutes. Despite written notice to Respondent that the products were not properly registered, that refusal to register continued at least through the date of the hearing herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby RECOMMENDED:

1. That Respondent be fined $200 for each of the ten (10) violations found herein above and as is more particularly set forth in the Amended Administrative Complaint filed herein for a total administrative fine of $2,000.

   
   

2. It is further recommended that payment of the $2,000 fine be paid to Petitioner, Department of Agriculture and Consumer Services, within 30 days of the date of Petitioner's rendition of its Final Order.

Recommended this 28th day of March, 1986, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1986.

ENDNOTE

1/ Association of Analytical Chemists. COPIES FURNISHED:

Ronnie H. Weaver, Esquire Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32301

Morrill N. Turk, President Charbet Chemical Company 1360 N. W. 54th Street Miami, Florida 33142

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Robert Chastain, General Counsel Department of Agriculture

and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301

Docket for Case No: 85-003227

Orders for Case No: 85-003227