The Issue Whether Petitioner should be issued a Pest Control Identification Card pursuant to Chapter 482, Florida Statutes. Petitioner James C. Melvin appeared at the hearing without counsel. After being advised of his rights under Chapter 120, Florida Statutes, he indicated that he understood such rights and did not desire to be represented by counsel.
Findings Of Fact Petitioner made application for a Pest Control Identification Card through Guardian Termite and Pest Control Company of Tampa, Florida, a certified operator, on February 13, 1978. By letter of March 2, 1978, to that organization, the Respondent's Director, Office of Entomology, advised that the application was denied because of Petitioner's previous noncompliance with Chapter 482, Florida Statutes, and Pest Control Regulations of the then Florida State Board of Health. (Exhibits 7, 8) Petitioner was employed by several pest control firms in Tampa during the period 1956 to 1962, and 1964 to 1965, during which periods he held a Pest Control Identification Card issued by Respondent. (Testimony of Bargren) On December 12, 1962, Petitioner was found guilty of violating State Board of Health structural pest control rules in the County Judges Court of Hernando County and sentenced to $15.00 costs and a suspended five-day confinement. On June 21, 1967, Petitioner pleaded guilty to a pest control violation in the Criminal Court of Record in and for Hillsborough County, Florida, and was sentenced to pay a fine of $200.00 or be confined in the county jail at hard labor for a period of sixty (60) days. Again, on September 11, 1967, in the Criminal Court of Record in and for Polk County, Florida, Petitioner pleaded guilty to engaging in structural pest control without a license and, on December 8, 1967, was sentenced to pay a fine of $200.00 or be confined in the county jail for a term of ninety days. (Exhibits 1, 4, 5)
Recommendation That the application of James C. Melvin for a Pest Control Identification Card be denied. DONE and ENTERED this 1st day of June, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William Park, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Fourth Floor Tampa, Florida 33614 James C. Melvin 1310 West Rambla Street Tampa, Florida 33612 Steven W. Huss, Esquire Central Operations Services Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES JAMES C. MELVIN, Petitioner, vs. CASE NO. 78-645 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, STATE OF FLORIDA, Respondent. / ADMINISTRATIVE ORDER A hearing was held in the above styled administrative cause before a Hearing Officer Thomas C. Oldham, Florida Division of Administrative Hearings, on May 23, 1978, upon the Petition of James C. Melvin which contested the denial of his application for a pest control identification cared through Guardian Termite and Pest Control Company of Tampa, Florida. Present at the hearing were the Petitioner, James C. Melvin and William M. Park, Attorney for the Department of Health and Rehabilitative Services, District VI. The Department of Health and Rehabilitative Services has reviewed the recommended order by Thomas C. Oldham, Hearing Officer, and adopts said order as follows:
Findings Of Fact Petitioner is an agency of the State of Florida with the responsibility for regulation and control of structural pesticide use and application and disciplinary action against pesticide license and certificate holders in Florida under the provisions of Chapter 482, F.S., as amended by Chapter 92-203, Laws of Florida, and the rules promulgated thereunder. Petitioner is the successor to the Department of Health and Rehabilitative Services, as provided in Section 34, Chapter 92-203, Laws of Florida, effective July 1, 1992, for the above duties and responsibilities. At all times material to this action, Respondent was a Certified Operator, Certification No. 1872. Respondent admitted that at all times material, he understood that he could not legally be issued more than one license or identification card. Respondent was originally working for Coastal Pest Control Inc. (Coastal Pest) on a strictly commission basis. Coastal Pest paid Respondent a weekly draw against a 15 percent commission on pest control work he personally did for them. While Respondent was so-employed for Coastal Pest, Respondent's wife was employed as an office worker for 3-D Universal Pest Control Inc. 3-D Universal Pest Control Inc. (3-D Universal) was then purchased by a new owner, Pete Luongo. Mr. Luongo wanted to become qualified in the pest control business. Respondent agreed to help Mr. Luongo become qualified. The principals of 3-D Universal, Mr. and Mrs. Luongo, knew before hiring Respondent that he worked for Coastal Pest. Mr. Luongo, on behalf of 3-D Universal, guaranteed Respondent a salary, and Respondent thereafter was "on call" to 3-D Universal for 24 hours a day. Respondent's wife set up schedules so that Respondent could work for both pest control companies on an "on call 24 hours a day" basis. Neither schedule set out a specific shift for Respondent with one company or the other on a daily basis. At all times material, Respondent considered himself employed "full-time" by 3-D Universal. There is no evidence as to whether Coastal Pest's principals knew or did not know of Respondent's employment by 3-D Universal. Respondent worked daily on paperwork and on training Mr. Luongo. Respondent testified that by agreement with Mr. Luongo, Respondent's employment with 3-D Universal was not supposed to involve any field work or handling of chemicals. Respondent set up this arrangement with 3-D Universal in reliance upon his own personal assessment that in so doing, he was complying with Section 482.091(6) F.S. which exempts office employees from holding identification cards. That statutory section is set out fully within the Conclusions of Law, infra. Respondent's testimony on this issue is credible as to intent, but not as to performance. On June 12, 1991, Petitioner agency received Coastal Pest's application for an identification card for Respondent. (Exhibit P-1-A) The application stated that Respondent was an employee of Coastal Pest Control, Inc., 414 Grant Street, Port Orange, Florida, working under a certified operator in charge. Respondent purportedly signed a representation thereon that he was not then employed by any other pest control licensee. It may be reasonably inferred that Respondent was issued a card as a result of this application, because he admitted that he was originally employed by Coastal Pest. On June 13, 1991, the agency received from 3-D Universal, 385 Dorset Avenue, Deltona, Florida, a combined application for a business license and request for identification cards which stated that Respondent was the certified operator in charge of all areas of 3-D Universal's pest control. No other certified operators were listed on this form. This form bears no signatures. On June 21, 1991, a new business license 3884 was issued by the agency to 3-D Universal. (Exhibit P-1-B) An identification card application for Respondent was also filed with the agency on June 13, 1991 (Exhibit P-1-C). The portion of the June 13, 1991 identification card application whereby Respondent was required to disclose that he was either (a) employed elsewhere and applying for a second card for experience in various areas of pest control or (b) was not currently employed elsewhere was left blank. The signature line for the card applicant was also blank. Respondent purportedly signed the line for the "certified operator in charge or licensee's authorized agent" and the remainder of the form clearly lists Respondent as "certified operator in charge" of all areas of pest control for 3-D Universal. Because the 3-D Universal combined business license and identification card application form (Exhibit P-1-B) provides that new identification cards must be issued with each license, and since that form was accompanied by an identification card application form signed by Respondent (Exhibit P-1-C), it may be reasonably inferred that a new, annually renewable identification card was issued to Respondent for work through 3-D Universal. Moreover, since the "William E. Peyton" signature on the June 13, 1991 3-D Universal identification card application (Exhibit P-1-C) appears to be the same as the "William E. Peyton" signature on the June 12, 1991 Coastal Pest identification card application (Exhibit P-1-A), the undersigned infers therefrom that Respondent signed both applications and that he knew that 3-D Universal had also applied for its business license on June 13, 1991 (Exhibit P-1-B). It is not credible that some person other than Respondent penned the same signature in his name for a Coastal Pest identification card on June 12, 1991 and for a 3-D Universal identification card on June 13, 1991. On August 22, 1991, the agency received Coastal Pest's combined business license renewal application for license no. 2803 and identification cards which listed Respondent as one of Coastal Pest's certified operators or special identification card holders in charge of no named category of pest control. This application was not signed. No separate request form for an identification card signed by Respondent accompanied it. The license was renewed August 27, 1991. It is unclear whether a new identification card was issued to Respondent with this license renewal. Unlike the earlier situations, issuance of new cards cannot be inferred here, in light of there being no separate identification card application signed by Respondent and due to an indicator on the exhibit that acknowledges only payment of the $75.00 license renewal fee and not the $5.00 fee for each new card. (Exhibit P-1-D) On March 19, 1992, the agency received 3-D Universal's combined business license renewal application for business license number 3884 and request for identification cards, on which Respondent was listed as a certified operator in charge of all areas of 3-D Universal's pest control. Respondent is the only certified operator listed on this application form. The application was not signed. The business license was renewed May 29, 1992. No inference that a new identification card was issued to Respondent can be made from this exhibit because no fee for cards was acknowledged with the business license fee and no separate application for an identification card was signed by Respondent. (Exhibit P-1-E) On August 20, 1992, the agency received Coastal Pest's unsigned combined business license renewal application and request for identification cards on which Respondent is listed as one of its certified operators or special identification card holders. This form lists no areas of pest control under Respondent's control. Although the renewal fee was apparently tendered, there is no indication that the business license was renewed or that new identification cards were issued. (Exhibit P-1-F) The agency's administrative complaint and post-hearing proposals assert that the agency terminated each prior license and all identification cards simultaneously with issuing each new license. If these allegations had been proven, they would explain why Coastal Pest's license 2803 was not renewed with its August 20, 1992 renewal application. If these allegations had been proven, then the agency's allegations that Respondent knowingly and intentionally operated simultaneously under two cards with different business licensee employers would be significantly undermined. However, the exhibits in evidence do not "prove up" any termination of licenses or cards by the agency, and there was no oral testimony to that effect. Likewise, Section 482.091(4) F.S. (set out on full in the Conclusions of Law, infra.) does not provide for automatic expiration of Respondent's cards for both licensees until at least June 1992 under the facts of this case. Respondent testified, without corroboration, that Mrs. Luongo had applied for the 3-D Universal business license and identification cards without his knowledge and that within moments of his being notified by an agency field operative that she had done so, Respondent quit his employment with Coastal Pest. Respondent did not give a date for when precisely this occurred, but giving him the benefit of the doubt, and upon the evidence as a whole, it is probable that he was referring to the March 19, 1992 3-D Universal application, for the totality of the evidence shows Respondent was involved in the initial 3- D Universal application of June 13, 1991. See, Finding of Fact 11, supra.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Commissioner of Agriculture enter a final order privately reprimanding Respondent and imposing a three-month period of probation. RECOMMENDED this 4th day of October, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1993. APPENDIX TO RECOMMENDED ORDER 93-2245 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Accepted, except as unnecessary, subordinate, or cumulative. Accepted. 3-11 These proposals reiterate the administrative complaint and, in part, track the lengthy certification of the agency clerk attached to Exhibit P-1. The certifications of the clerk and the interpretations of the agency notwithstanding, these proposals are accepted in part in Findings of Fact 8-15 and rejected in part as not supported by the exhibits themselves, hence not supported by the record. Respondent's PFOF are not numbered or paragraphed in any way that can be readily ruled upon, pursuant to Section 120.59(2) F.S. They are apparently intended as persuasive argument and are discussed as such within the Conclusions of Law. Respondent's concern that settlement negotiations have been considered is ill- founded. Exhibit P-2 constitutes the Respondent's Answer and Request for Informal Hearing which was converted to a Formal Hearing. COPIES FURNISHED: Gabriel Mazzeo, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 William E. Peyton 977 Whippoorwill Drive Port Orange, Florida 32127 Richard Tritschler, Esquire General Counsel Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact Respondent Turner is engaged in the business of pest control, including the application of termiticide to the soil of pre-construction sites for the prevention of subterranean termites. Respondent is licensed by the Petitioner under Chapter 482, Florida Statutes, as a pest control business and maintains its primary place of business in Jacksonville, Florida. Respondent Kincade is employed by Turner as a pesticide applicator technician. The Petitioner is the state agency with jurisdiction to regulate and license pest control businesses and technicians. On June 12, 1993, Mr. Phil Helseth and Mr. Montgomery, employees of the Petitioner, were returning from lunch and observed one of Respondent Turner's trucks turning onto the Blodgett construction area in Jacksonville, Florida. Helseth surmised the Respondent's truck was there to do a pretreatment for termites. Helseth then observed activities by a Turner Pest employee, later identified as Mr. Kincade, who was spraying a substance on the soil on foundation areas at sites one and two. Mr. Helseth concluded the Respondent's agent was engaged in termite pretreatment. When the Turner employer concluded his activities, he drove his truck to the construction trailer on the building site where he was confronted by Mr. Helseth and Mr. Montgomery. At that time a third employee of the Department, Mr. Parker, had arrived, bringing calibration equipment to measure the rate of discharge from the Turner Pest pumper truck. Petitioner's inspectors introduced themselves to Kincade and identified themselves. Petitioner's representative requested Kincade to produce the identification card issued to him by Petitioner. Mr. Kincade did not do so. Petitioner's representative asked Kincade questions about what he was doing, and Kincade demurred, stating it was Turner's policy for him to call a supervisor who would answer their questions. Kincade called his office, and shortly thereafter Joe Turner arrived on site. The spraying equipment utilized by Kincade was then calibrated to determine the amount of pesticide mixture being emitted. Joe Turner, President of Turner Pest Control, Inc., denied that they were performing a pre-construction treatment for termites. Mr. Turner testified that the purpose of spraying the Dursban 2E on the site in question was to empty the tank and that this was proper disposal of the chemical in accordance with the label instructions. A local pest control operator testifying for Respondents stated that the disposal of the pesticide Dursban 2E in this manner was perfectly in accordance with the label and that he has emptied tanks of Dursban 2E on construction sites twenty to thirty times in the last two or three years. Petitioner did not offer any testimony that this method of disposal was contrary to the label. Petitioner concluded that Turner Pest was conducting a termite pretreatment, although informed by Joe Turner at the time such was not the case, and filed the initial Administrative complaint. The Blodgett site contractor's job superintendent, Joe Wilson, testified. Sites prepared for construction at Blodgett Homes would receive termite pretreatment and pest control. Joe Turner had consulted with Wilson about spraying the Dursban 2E to dispose of the chemical. The job superintendent knew the operator, Kincade, was not performing a pretreatment for termites. Dursban 2E is a general insecticide. It, according to its label, can be used in a variety of concentrations, for a variety of insects, but termites are not one of those insects. Disposal, according to the labels, is by spraying the chemical on soil such as to lawn or a building site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services dismiss the charges against Turner Pest Control, Inc. and impose an administrative fine in the amount of $100.00 against Respondent, William D. Kincade. DONE AND ENTERED this 14th day of April, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-6624 Both parties filed Proposed Recommended Orders which were read and considered. The following states which of these proposed findings were adopted and which were rejected and why. Petitioner's PFOF: Paragraph 1 and 2 Adopted. Paragraph 3 True, but irrelevant. Paragraph 4 Respondent's paragraph 3 et seq. better states the facts. Last part adopted as paragraph 5. Paragraph 5 Adopted RO paragraph 5. Paragraph 6 Adopted RO paragraph 6. Paragraph 7 Adopted RO paragraph 7. Paragraph 8 Rejected as argument. Paragraph 9 Contrary to better evidence. Mr. Helseth conclusions were based upon his conclusion that Dursban 2E was being used as a termite pre- treatment, not being disposed of. Paragraphs 10, 11 RO paragraph 8. Last sentence is rejected because it was accepted that use and disposal was controlled by the instructions on the label. The label indicates disposal by spraying on soil was appropriate. Respondent's PFOF: Paragraph 1 RO paragraph 3. Paragraph 2 RO paragraph 4 and RO paragraph 9. Paragraph 3 Irrelevant. Paragraph 4 Restated in RO paragraph 5 and 6. Paragraph 5 RO paragraph 11. Paragraph 6 RO paragraph 11. Paragraph 7 RO paragraph 12. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, FL 32399-0800 William G. Cooper, Esquire COOKER MYERS 136 East Bay Street Post Office Box 1860 Jacksonville, FL 32201
The Issue Petitioners seek attorney's fees and costs from Respondent, Department of Agriculture and Consumer Services, pursuant to Section 57.111, Florida Statutes. The parties have stipulated that Petitioners are "small business parties" under that section, and that the fees and costs being sought are "reasonable." The issues remaining for disposition, therefore, are: Whether Petitioners "prevailed" in all four underlying cases, including the two that were settled prior to final hearing; Whether the Department "initiated" the procedures, or was merely a "nominal party"; Whether the Department had a "reasonable basis in law and fact" at the time that it initiated the proceedings; Whether special circumstances exist which would make an award unjust; and Whether the statutory $15,000 cap should be applied collectively or separately to the four underlying cases.
Findings Of Fact (The facts are substantially uncontroverted and the facts established in the underlying cases nos. 94-2801, et al are incorporated by reference. The following facts are recounted to establish a background for the contested issues of law.) As stipulated, the Petitioners are small business parties within the meaning of Section 57.111, Florida Statutes. They are Florida corporations, with their principal offices in Florida, with less than 25 full-time employees and net worth of less than $2 million. The Department of Agriculture and Consumer Services (department) is the state agency responsible for administering and maintaining the pesticide- sensitive and especially pesticide-sensitive person registries as provided in Section 482.2265(3), Florida Statutes (1993). Carol Ann Rodriguez, Jacqueline V. Dilworth, Susan L. Maxwell and Carrietta Kelly are four individuals, among approximately twenty-seven individuals, who applied to the department for designation as "especially pesticide-sensitive" pursuant to subsection 482.2265(3), Florida Statutes, (1993). The pesticide-sensitive and especially pesticide-sensitive registries are described in the department's final order entered August 4, 1995, adopting all but two findings of fact in the Hearing Officer's recommended order in Case No. 94-2801, et al. These findings, and the findings related to the department's review of applications, need not be repeated here. In summary, however, the department did not investigate the merits of the applications but merely determined whether the certifying physicians were qualified according to the department's liberal interpretation of its own rule. That review function was delegated primarily to the secretary for the administrator of the department's pest control section. After review, the department published quarterly notices in the Florida Administrative Weekly of its intent to grant applications of especially pesticide-sensitive persons. The notices listed the names and addresses of the applicants and described the process for pest control operators to request hearings pursuant to Section 120.57, Florida Statutes. These were clear points of entry. Petitioners here, and the Florida Pest Control Association, Inc. filed their requests for hearings, challenging the department's proposed action. The underlying consolidated cases resulted. Prior to the formal hearing, several individual applicants, including Carol Ann Rodriguez and Jacqueline Dilworth, settled their cases by withdrawing their applications and agreeing to be placed on the less restrictive pesticide- sensitive registry. This outcome was favorable to Petitioners because they were thereby relieved of the more onerous notification requirements which attach when an individual is designated "especially pesticide-sensitive." This was the relief Petitioners sought. After vigorous prehearing motion and discovery activity, approximately twenty consolidated cases proceeded to formal hearing. Among those were the individual cases of Susan L. Maxwell and Carrietta Kelly. The department, through counsel, participated in the formal hearing. It presented evidence through exhibits and witnesses, and cross-examined witnesses presented by other parties. Evidence to support Susan Maxwell's application was limited to a certification signed by Dr. Albert Robbins, an osteopathic physician. The certification was not supported by any non-hearsay evidence. Evidence to support Carrietta Kelly's application was limited to Dr. Robbins' testimony that he signed her certificate after she and her physician husband called him and wrote him a letter. Mrs. Kelly was never Dr. Robbins' patient and he never met her. The outcome of the formal hearing was a recommended order which found that no individual in the multiple cases presented adequate proof of the need for notification at greater distance than that specified for pesticide-sensitive persons. In other words, the applicants failed to prove entitlement to designation as "especially pesticide-sensitive." The department entered its final order on August 4, 1995, and adopted all but two findings by the hearing officer. The first rejected finding was that nothing in evidence indicated that one of the certifying individuals, "Roy P. Doyle," was a physician. The second finding rejected by the department was that the department had failed to justify or explicate its policy for qualifying physicians other than those specified in its own rule. The department's final order removed all of the individual parties from the registry as "especially pesticide-sensitive" and left them on the pesticide-sensitive list. Petitioners thus prevailed on the central issue in dispute: whether the individuals were entitled to designation as "especially pesticide- sensitive." The fees and costs incurred by Petitioners in their successful defense, as well as fees incurred in pursuing the instant claims, are appropriately described in affidavits filed with the petitions and amended petitions. The department accedes to the reasonableness of the fees and costs, except where they are duplicated in more than one case. The affidavits establish that the Petitioners incurred $22,348.70 in attorney's fees and $4,085.26 in costs related to the four underlying cases. In addition, and not included in the above total, are minor fees incurred in individual cases: Rodriguez $374.00 Dilworth $368.50 Maxwell $115.50 $858.00 Petitioners also claim $2,530.00 (23 hours x $110/hour) for fees incurred in their Section 57.111 cases here. These costs and fees are reasonable, and amount to a total of $29,821.96. The calculation which leads to that total avoids duplication (charges for the same work computed more than once). The calculation also reflects that the three Petitioners joined together, two Petitioners each, in the four underlying cases, hired a single attorney and avoided duplication of effort by separate attorneys for each Petitioner.
The Issue The issue in this case is whether an application for a pest control employee-identification card filed by Respondent, Larry Kravitsky, with Petitioner, the Department of Agriculture and Consumer Services, should be denied for the reasons stated in Administrative Complaint # A61227, BEPC Case # 09-0850.
Findings Of Fact Respondent, the Florida Department of Agriculture and Consumer Services, Bureau of Entomology and Pest Control (hereinafter referred to as the “Department”), is charged with the responsibility of administering and enforcing the provisions of Chapter 482, Florida Statutes, the “Structural Pest Control Act.” Among other duties, the Department is responsible for issuing pest control employee-identification cards. On or about February 13, 2007, the Department issued an Administrative Complaint and Settlement Agreement, Notice to Cease and Desist, BEPC Case Number 06-1951, Administrative Complaint Number A47018, against Larry Kravitsky (hereinafter referred to as the “Disciplinary Administrative Complaint”). It is alleged in Count 1 of the Disciplinary Administrative Complaint that Mr. Kravitsky committed a violation of Section 482.165(1), Florida Statutes (2006), by “practicing pest control in the State of Florida without a Pest Control Business License . . . .” In Count 2 it is alleged that Mr. Kravitsky violated Florida Administrative Code Rule 5E- 14.106(1) by “[a]pplying a pesticide in a manner inconsistent with its labeling ” On or about February 28, 2007, Mr. Kravitsky disputed the facts upon which the Disciplinary Administrative Complaint is based and requested a formal administrative hearing pursuant to Sections 120.569, and 120.57(1), Florida Statutes. On December 4, 2007, the matter was filed by the Department with the Division of Administrative Hearings requesting that an administrative law judge be assigned to conduct the formal hearing requested by Mr. Kravitsky. The matter was designated DOAH Case No. 07-5600PL and was assigned to the undersigned. An evidentiary hearing was held in DOAH Case No. 07- 5600PL on December 18, 2008. On June 2, 2009, a Recommended Order was entered in DOAH Case No. 07-5600PL. The Findings of Fact, Conclusions of Law, and recommendation in that case are hereby incorporated by reference into this Recommended Order. In the Recommended Order Mr. Kravitsky was found to have violated Section 482.165, Florida Statutes, and Florida Administrative Code Rule 5E- 14.106(6), as alleged in the Disciplinary Administrative Complaint. On July 14, 2009, a Final Order was entered by the Department in the disciplinary Administrative Complaint case. The Findings of Fact and Conclusions of Law set forth in the Recommended Order were adopted “in their entirety” and Mr. Kravitsky was ordered to pay a fine of $4,000.00. On or about January 6, 2009, subsequent to the issuance of Disciplinary Administrative Complaint and prior to the entry of the Recommended Order in DOAH Case No. 07-5600PL, Mr. Kravitsky applied with the Department for a pest control employee-identification card. By Administrative Complaint # A61227, BEPC Case # 09- 0850, the Department notified Mr. Kravitsky that his January 6, 2009, application for a pest control employee-identification card was being denied based upon the following: A copy of an Administrative Complaint and Settlement Agreement against Larry Kravitsky dated February 13, 2007, Administrative Complaint Number A47018, BEPC Case Number 06-1951 is attached hereto as Exhibit A. The factual allegations against Mr. Kravitsky in Exhibit A are incorporated by reference herein. Based on the factual allegations in Exhibit A, Larry Kravitsky practiced pest control on or about June 5, 2006, in the State of Florida without a pest control business license and without an identification card in violation of Section 482.165(1), Florida Statutes. Based on the factual allegations in Exhibit A, Larry Kravitsky applied a pesticide on or about June 5, 2006, in a manner inconsistent with its labeling in violation of Section 5E-14.106(1), Florida Administrative Code. The Department is authorized by Florida Statutes, Section 482.161(1)(a) to deny the application for licensure of an identification cardholder for the violation of any provision of Chapter 482, Florida Statutes or of any rule adopted by the Department pursuant to Chapter 482, Florida Statutes. The alleged violations against Larry Kravitsky set forth in Exhibit A were tried in an administrative hearing on December 8, 2008, before Honorable Larry Sartin Administrative Law Judge in Division of Administrative Hearings (DOAH) Case Number 07-5600. A Recommended Order has not yet been issued in that case. Mr. Kravitsky disputed the foregoing allegations and requested a formal administrative hearing. His request was filed with the Division of Administrative Hearings and designed DOAH Case No. 09-2300.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying the application for a pest control employee-identification card filed by Larry Kravitsky due to his violation of Section 482.165, Florida Statutes, and Florida Administrative Code Rule 5E-14.106(6), as alleged in the Disciplinary Administrative Complaint and found in DOAH Case No. 07-5600PL. DONE AND ENTERED this 10th day of August, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of August, 2009. COPIES FURNISHED: David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Larry Kravitsky 3300 South Ocean Boulevard, Apartment 917 Highland Beach, Florida 33487 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue for consideration in this matter is whether the Department should issue a Warning Letter to the Respondent because of his application of a pesticide in a client's home on September 16, 1994.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture was responsible for the registration, licensing and regulation of pest control applicators in Florida. In September, 1994, Crystal S. Tipton contacted the Respondent, Michael A. Kaeler, as the representative for Terminix International, and requested that he come to her home, located at 6253 Old Trail in New Port Richey, to spray for bugs and fleas. Mrs. Tipton had a contract with Terminix, dated July 19, 1994, which called for periodic applications, and this was the second visit under the plan. On September 16, 1994, Respondent came to the home in response to the call, arriving about 9:00 AM. At that time, Mrs. Tipton advised him that she had had a bad reaction from the July spraying. On September 16, 1994, Mrs. Tipton was in the house alone. Respondent started treating the house shortly after he arrived. Mrs. Tipton had told him not to spray her daughter's bedroom because of the reaction the child had had from the prior treatment. Mrs. Tipton remained in the house, cleaning, while Respondent applied the substance. At no time, she asserts, did Respondent instruct her to leave the house or give her any instructions except to tell her to wear shoes when she walked on the carpet. He did not tell her to stay off the carpet until it dried. According to Mrs. Tipton, while Respondent was applying the pesticide, on occasion she was in the same room with him, and she could smell the spray. At no time did he advise her to leave the room while he sprayed. Respondent also got behind the baseboards to spray, and put pesticide on the ground outside the house. He then left. According to Mrs. Tipton, the smell was worse this time than after the first spraying. Though she opened all the windows, even while Respondent was spraying, the smell remained for hours, and at 11:30 PM, the carpet was still damp, she claims. As she recalls it, the smell stayed in the house until the following day. After Mrs. Tipton realized there was a problem, she contacted several experts to come out and see what could be done. Her husband contacted Mr. Bowen, the Department's local representative, and told him what had happened, but no other complaint was filed. Mrs. Tipton called Terminix the Monday after the spraying to tell them that all the people in the house were sick. They did not respond promptly, so she had the carpets cleaned and a maid service in to clean the house, but even after that the smell was still present. Mrs. Tipton does not know what chemical was applied in her home by Respondent either in July or in September. She recalls only that in July Mr. Kaeler also told her to wear shoes on the damp carpet. On that occasion, the carpet was damp for three to four hours after spraying, but she does not know how much chemical was applied. During the September application, Mrs. Tipton remained in the family room and the kitchen while Mr. Kaeler was applying the substance throughout the house, and even when he was applying in the kitchen, which is tiled. Though he used a broadcast spray in those areas which were carpeted, including the living room, the dining room, the family room, the master bedroom, the halls, and the entrances to the children's bedrooms, he used a pin spray in the kitchen. Whereas the broadcast spray gives a wide application, the pin spray is exact and puts the pesticide in a very limited area. She had told him not to spray in the children's rooms, and claims she asked him not to use the same spray he had used in the earlier visit. Mrs. Tipton claims Mr. Kaeler did not tell her he had used the same spray but in a diluted strength or in a lesser volume. She claims he said he would not use the same spray and would not spray the daughter's bedroom. It would appear he did not spray the children's rooms, but there is no indication he used a different spray in September than in July. Mrs. Tipton claims the carpet remained damp far longer than it did during the July spraying and she thought this was unusual. When Mr. Bowen, the Department's entomologist inspector, was contacted by Mr. Tipton, he gave Mr. Tipton some advice on how to deal with the problem. The children's doctor also called Bowen about what Bowen had told Mr. Tipton. When Mr. Tipton finally suggested that the pesticide had been applied improperly, Bowen opened his investigation. He took Mrs. Tipton's statement and got the doctor's comments. He also took a statement from Mr. Kaeler and his records for the July and September applications, as well as copies of the labels from the containers of the pesticide applied. The Department requires that all products be used consistent with the labeling instructions and the standards of the Department and the Environmental Protection Agency, (EPA). From his investigation, Mr. Bowen determined that the Respondent used Dursban L.O. Mr. Bowen is familiar with that product and determined that the Respondent applied the product at a concentrated rate in a broadcast pattern over the carpets. This was appropriate, but if it were done while people other than the applicator were in the structure, he contend this was specifically prohibited by the label. In his opinion, Mr. Kaeler's actions constitute a violation of the statute and the Department's rule. None of the information received by Mr. Bowen from the family doctor or the Health Department related to the propriety of Respondent's application of the product. These contacts related only to the health of the children. The only reference to possibly improper application is found in Mrs. Tipton's undated statement. The label on the Dursban L.O. product indicates, "Other than the applicator, treated areas should be vacated during application. Do not permit humans or pets to contact treated surfaces until the spray has dried." Mr. Bowen did not contact the manufacturer to see what "areas" being treated meant. He feels that the interpretation is up to his agency, and he agrees with the agency determination that the entire residence must be vacated. No direct evidence was presented to show the agency determination, however, and it appears the determination of propriety of application was left up to Mr. Bowen. A broadcast spray is used for large areas. A pin stream is used for cracks and crevices. A pin stream application does not, in Mr. Bowen's opinion, require vacation of the structure. The broadcast spray for flea control does, however, as he sees it. If the manufacturer were to hold that application did not require evacuation of the entire structure, but only the room being treated, then in that case, Mr. Bowen would conclude that the application by Mr. Kaeler was appropriate. As he recalls, Mr. Kaeler used one half gallon of 1/4 percent solution for an 1800 square foot application. This was a fairly light treatment. Mr. Bowen has, himself, applied Dursban L.O. at this rate. Mr. Kaeler has been employed by Terminix since November, 1993 as a service technician. He underwent 30 days of a training program in identification of insects and application techniques and requirements of pesticides, including Dursban, with the company. He is not licensed. Terminix holds the license under which he operates. Mr. Kaeler admits that when he treated the Tipton house on September 16, 1994, Mrs. Tipton complained of her daughter's head aches resulting from the prior application and asked him not to spray the child's bedroom, but she did not object to the use of this pesticide. He broadcast sprayed all the carpeted area up to the entry to the girls' bedrooms. In all the girls' rooms there were clothes, books and toys on the floor so he did not spray inside. In the kitchen, which, he claims, was the only location where Mrs. Tipton was present while he sprayed, he used the pin stream technique. The entire spraying took about 30 minutes. Mr. Kaeler also sprayed the windows and doors from the outside and the garage, using the pin stream spray in all those locations. The one half gallon of solution was used to do all the spraying at the Tipton's house that day, both inside and out. Mr. Kaeler believes that the solution he sprayed on the carpeted areas on September 16, 1994 should have dried in no more than an hour. He confirms that Mrs. Tipton opened the windows and turned on the fans while he was still spraying. He had told her to do this the first time. As Mr. Kaeler understands it, Terminix's policy is that occupants of property being broadcast sprayed for insects should stay off the carpet being sprayed but need not vacate the structure. Dr. Ellen Thoms, an entomologist working for the manufacturer of the chemical in issue, indicates that the label instructions on containers of Dursban L.O. were intended by the company to mean that the term "area" where the chemical is being applied by broadcast spray includes not the entire structure but the immediate area of the application because of the possibility of spraying the chemical on someone. The danger is in contact with the substance through the skin or through oral ingestion, not in the odor or the fumes. In Dr. Thoms' opinion, Mr. Kaeler's application was consistent with the terms of the label, which uses the term "should" rather than the term "must". The drying time for carpet sprayed with Dursban L.O. by broadcast spray is effected by the thickness of the carpet and the relative humidity in the sprayed area. Since a greater amount of applied substance dried more quickly in the high humidity of July, in Dr. Thoms' opinion it is unlikely a smaller amount applied in September would take more than 14 hours to dry. She does not know what the climate factors were that day, however. Dr. Mangold, a technical specialist for Terminix, and an entomologist certified in all four categories of pest control, reviewed all the material evidence in this case and heard the testimony given at hearing. He has concluded that what Mr. Kaeler did was conservatively to apply a very diluted spray, usually applied at a rate of one gallon per 1,600 square feet. His one half gallon application for an 1,800 square foot house, plus outside, is an appropriate maintenance application. In Dr. Mangold's opinion, Mr. Kaeler's application in September, 1994 was consistent with the label requirements in amount, concentration and percent, and with the requirement that all other persons be out of the area being treated. He does not believe, in light of what was shown, it could have taken in excess of fourteen hours for this application to dry. In his opinion, drying should have taken between twenty minutes and an hour, and he can see no possible explanation for it having taken as long as Mrs. Tipton claims. Dr. Mangold defines the term "area treated" as being the immediate area being treated - an eighteen inch swath and some adjacent area, to-wit: the area being contacted by the spray. Mr. Lemont, a fully certified entomologist-consultant reviewed the file on this case and heard the testimony given at hearing. In his opinion, the term, "area treated" includes the contact area, not the entire structure. He believes Mr. Kaeler performed consistently with the label instructions and there was no violation. The words, "should" and "may", are interpreted in the trade as permissive and non-enforceable. Stronger words, such as "shall" and "must", are directive and enforceable. Mr. Lemont agrees that the application by Mr. Kaeler was a light application. Drying depends on humidity, but often an application dries before the operator leaves. He cannot believe this application would have taken more than two to three hours, even under the most adverse atmospheric conditions. Certainly, it would not have taken more than fourteen hours. In Lemont's opinion, the issue of how close an applicator can come to others while applying Dursban L.O. by broadcast spray is a judgement call. The issue is contact. Mrs. Tipton was not positive on the issue of Mr. Kaeler's being in the room with her, other than the kitchen, while applying the substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT a Warning Letter not be issued to either Michael A. Kaeler or Terminix International Co., LP., as a result of Mr. Kaeler's application of Dursban L.O. at the Tipton residence in New Port Richey, Florida on September 16, 1994. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. COPIES FURNISHED: Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire P.O. Box 814 Melbourne, Florida 32902 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel Department of Agriculture Room 1302, The Capitol Tallahassee, Florida 32399-0800
