The Issue 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.
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.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order 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.
Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the regulatory agency charged with regulating the terminate and pest control industry in Florida. Respondent, Howard R. Kempton, is a certified operator licensed by the Petitioner. During times material, Respondent was a certified pest control operator for Pinellas Termite and Pest Control, Inc., in St. Petersburg. On July 24, 1991, Respondent was the certified operator in charge of fumigation of a residential structure at 3318 Shamrock in Tampa, Florida. In carrying out the fumigation, Respondent used the fumigant product VIKANE (sulfuryl fluoride). Respondent did not provide Petitioner a notice of the intended fumigation at 3318 Shamrock in Tampa within 24 hours in advance of the fumigation as is required by the Petitioner's rules and the labeling provisions for the product VIKANE. In addition, Petitioner's inspector, William Bargen, who has been employed by Petitioner in the office of entomology in excess of 28 years, visited the residence on the day of the fumigation and the tarpaulin that Respondent used was not air tight as practicable in that it contained numerous slits and tears that was not properly sealed at the ground level encompassing the structure. The safety warning signs fastened to the exterior of the tarpaulin were not printed in indelible ink or paint and the emergency phone numbers for the certified operator were not legible. As a result of the improper seals, the fumigant VIKANE was escaping from the tarpaulin while the gas was being pumped into the structure at 3318 Shamrock on July 24, 1991. Inspector Bargen took photos of the fumigation tent as it was in place at 3318 Shamrock on the day in question, July 24, 1991 and it depicts the condition of the tarpaulin and the improper signs that were utilized by Respondent on that jobsite. The owner of the property called Petitioner's office and Inspector Bargen visited the site on July 24, 1991. It is undisputed that Respondent alerted the homeowner to call Petitioner who in turn dispatched Inspector Bargen to the site based on instructions from Respondent that he alert the Department of the on-going problems that he was having with his employer, Pinellas Termite and Pest Control, Inc. Respondent admits that the manner in which the fumigation occurred on July 24, 1991 at 3318 Shamrock in Tampa was improperly performed. However, Respondent offers that he did as much as he could under the circumstances to comply with the Petitioner's rules and regulations and the labelling instructions for the fumigant VIKANE as set forth by the manufacturer. Respondent related numerous occurrences whereby he attempted to convey the importance of carrying out the proper instructions to his employer without success. As a result, Respondent sought other employment and is no longer employed as a certified operator with Pinellas Pest Control. Finally, while Respondent recognized that a certified operator is responsible for the overall operations of the fumigation projects that he is in charge of, he relates that instructions were given to office personnel at Pinellas Pest Control to advise the Petitioner of the 24 hour notice prior to the date of fumigation and he was under the impression that timely notice was forwarded to Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $250.00 payable to Petitioner within 30 days of the entry of the Petitioner's final order.1/ DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of May, 1992.
The Issue Whether or not the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is entitled to the renewal of an emergency pest control certificate in accordance with the terms and conditions of Subsection 482.111(10), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon the Respondent, State of Florida, Department of Health and Rehabilitative Services' refusal to renew the emergency pest control certificate of Kenneth F. Feathers, d/b/a Feathers Exterminating Company. On November 6, 1978, a representative of the Respondent wrote to the Petitioner and indicated the basis for denying the renewal request, after which the Petitioner requested a formal hearing pursuant to Section 120.57, Florida Statutes. The testimony in the course of the hearing revealed that the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is involved with the structural pest control business. Kenneth F. Feathers, the licensee, is the holder of a special identification card under the authority of Section 482.151, Florida Statutes. He does not hold a pest control operator's certificate as described in Section 482.111, Florida Statutes. In the years 1977 and 1978 the Petitioner had listed at various times, the names of Wayne Neal Pearce and Michael D. Brennan as being the certified pest control operators in charge of all categories of pest control being carried out by Feathers Exterminating Company. In fact, Pearce and Brennan, though certified as pest control operators and listed by the Petitioner as being the certified operator in charge of the Feathers Exterminating Company, were in fact employed in Gainesville, Florida, in other primary occupations which they worked contemporaneously with the work day of the Feathers Exterminating Company. Under the arrangement they were merely on call and never actually performed supervisory duties for the Petitioner. Mr. Pearce was a police officer with the Gainesville, Florida, Police Department and subsequently opened up his own pest control business in Gainesville. Mr. Brennan was and is primarily employed by Clay Electric Company. When these discoveries were made by employees of the Respondent, the Petitioner was advised that neither Mr. Pearce nor Mr. Brennan could serve in the capacity as certified pest control operators for the Feathers Exterminating Company, in view of the fact that these individuals were not employed on a full-time basis by Feathers Exterminating Company, in the sense of being in charge of all categories of pest control. After these discoveries on the part of the Respondent, the Petitioner requested an emergency pest control certificate under authority of Subsection 482.111(10), Florida Statutes, and this emergency certificate was granted. That initial request occurred sometime in October, 1978. On October 28, 1978, the Petitioner requested a renewal of the emergency pest control certificate which brought about the denial which is the issue in this hearing. At present and during the time for which the original emergency certificate had been granted and a renewal requested, the Petitioner does not and did not have a certified pest control operator in charge of the categories of pest control conducted by Feathers Exterminating Company. Both Pearce and Brennan have terminated their involvement with the Feathers Exterminating Company, even in an advisory capacity, and the Petitioner's efforts at arranging for a replacement certified pest control operator have not been successful. This has been the outcome notwithstanding the long-term efforts on the part of the Respondent, beginning in 1975, to assist the Petitioner in complying with the requirements for having a certified pest control operator in charge of the Petitioner/licensee's business activities conducted under Chapter 482, Florida Statutes. In view of these facts, the Petitioner is not entitled to a renewal of the emergency pest control certificate. Subsection 482.111(3), Florida Statutes, states: "Each category of each licensee shall be in the charge of a certified operator who is certified for the particular category..." Under the current statement of the law found in Section 482.152, Florida Statutes (1978), whose effective date was October 1, 1978; for the business activity of the licensee to be in the charge of a certified operator, it is necessary for that certified pest control operator to fulfill the duties set forth in this section. Section 482.152, Florida Statutes (1978), contained the following language: "Duties of certified pest control operator in charge of pest control activities of licensee.--A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest con trol business, who is employed on a full time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: ..." It can be seen by the language set forth in this Section 482.152, Florida Statutes, that neither Pearce nor Brennan would qualify as certified pest control operators for the benefit of the Petitioner, because they either do not have their primary occupation in the structural pest control business, and/or are not employed on a full-time basis by the Petitioner and do not have their principal duties as one of personal supervision and participation in the pest control operations of the Petitioner, even if those individuals consented to continue their prior arrangement with Feathers. Nevertheless, the Petitioner might be entitled to an emergency certified pest control operator's certificate if provisions of Subsection 482.111(10), Florida Statutes, could be satisfied; however, the Petitioner has failed to demonstrate that he has any reasonable expectation of hiring a certified pest control operator who may fulfill the requirements of Section 482.152, Florida Statutes, in terms of the duties incumbent on a certified operator through whom the licensee intends to transact business in accordance with the requirements of Section 482.111, Florida Statutes. In addition, the testimony clearly demonstrated that the Petitioner at one time was using the certificates of Pearce and Brennan to secure or keep his license at a time when Pearce and Brennan were not in charge of the pest control activities, and the Petitioner was thereby in violation of Subsection 482.121(2), Florida Statutes, which violation in turn would constitute a sufficient ground for denying the renewal of the emergency pest control operator's certificate. This ground for denial is authorized by Subsection 482.161(1), Florida Statutes, which states that a license renewal may be denied on the basis that a Provision of Chapter 482, Florida Statutes, has been violated. In summary, the renewal of the emergency certified pest control operator's certificate should be denied because the Petitioner has failed to give sufficient reasons for such renewal and because the Petitioner, by violating Subsection 482.121(2), Florida Statutes, has given the Respondent an affirmative ground for such a denial under provision Subsection 482.161(1), Florida Statutes. (At the conclusion of the hearing the Petitioner indicated his intention to stand for an examination under Chapter 482, Florida Statutes, which would allow him to obtain a pest control operator's certificate that would allow him to operate his business in those categories which he desired to be employed in. On March 22, 1979, the attorney for the Respondent informed the undersigned that Mr. Feathers had successfully passed those portions of the examination which would allow him to obtain a certificate to operate in the areas of lawn and ornamental pest control and general household pest control. On this occasion, Mr. Feathers was not successful in passing the portion of the examination involved in termite pest control. It would therefore appear that the Petitioner is entitled to a certificate to operate in the fields of lawn and ornamental pest control and general household pest control, after the payment of the appropriate fees. Under these circumstances, the Petitioner would not be entitled to operate in the area of termite pest control in the sense of being the holder of such a certificate and in keeping with the undersigned's impression of this case, the affect of this Recommended Order would be a recommendation that the Petitioner not be granted a renewal of his emergency pest control operator's certificate in the termite pest control specialty.)
Recommendation It is recommended that the Petitioner's request for the renewal of his emergency pest control operator's certificate be DENIED. DONE AND ENTERED this 22nd day of March 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Mr. Kenneth F. Feathers Feathers Exterminating Company 1527 Northeast 8th Avenue Ocala, Florida 32670 Joseph E. Hodges, Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 Northwest 13th Street Gainesville, Florida 32601
Findings Of Fact Respondent Charles T. Noegel has been in the pest control business for some sixteen years. In February of 1976, the petitioner Office of Entomology sent all licensees a license renewal application for a license to be effective on March 31, 1976. Petitioner received a check from respondent, but the proceeds thereof were applied to review respondent's pest control operator's certificates. A check sent by respondent during 1975 had been returned for insufficient funds. A pest control business license cannot be issued unless there is evidence of a current operator's certificate in existence. Petitioner did not receive respondent's application or a check for the license which was to be effective on March 31, 1976. In June of 1976, petitioner notified respondent that they needed his application and a check for the renewed license. They also sent him an application form. According to respondent, he did not receive the entire application form. Respondent testified that he telephoned the petitioner's office in Jacksonville on two or three occasions and told a secretary there that he did not have a complete application form. In March of 1977, Mr. Page from petitioner's office called respondent. Respondent was not available and Mr. Page left the message with respondent's answering service that respondent was operating illegally without a license and asked Mr. Noegel to call him. Mr. Page received no reply from this message. According to Mr. Noegel, he received the message but did not receive the name or telephone number of the person who left the message. In April of 1977, petitioner did receive from respondent an application for the renewal of his operator's certificate and a check. Respondent has been delinquent in the past in applying for his license, and various checks have been returned for insufficient funds. Had respondent timely applied and paid for the renewal of his March 31, 1976, license, petitioner would have issued the license to him. By certified letter dated August 10, 1978, petitioner notified respondent that his pest control operator's certificate number 519 was being revoked for failure to comply with Chapter 482 of the Florida Statutes and Chapter 10D-55 of the Florida Administrative Code. Generally, respondent was charged with conducting his pest control business, known as the Seminole-Gator Exterminator, without a license. While more specific charges are contained in the August 10, 1978, letter, petitioner offered no evidence at the administrative hearing to substantiate such specific allegations.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner find that respondent violated Section 482.071(1) by operating his business without a valid license. It is further recommended that respondent's operator's certificate number 519 be suspended for a period of sixty (60) days from August 10, 1978, and that upon the payment of all back license renewal fees, respondent's certificate be reinstated, and respondent be placed on probation for a period of eighteen months. The terms of probation should include the timely renewal and payment of all permits required by petitioner's laws and regulations. Respectfully submitted and entered this 6th day of October, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1978. COPIES FURNISHED: Charles T. Noegel Entomologist - Manager Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32304 Donna Stinson, Esq. Department of HRS 2639 N Monroe Street Suite 200-A Tallahassee, Florida 32304 William J. Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Andrew J. Rogers Director, Office of Entomology Department of HRS Post Office Box 210 Jacksonville, Florida 32231 =================================================================
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
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 Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
The Issue The issues in this case are whether Respondent, Larry Kravitsky, as alleged in Petitioner’s Administrative Complaint issued by Petitioner, the Department of Agriculture and Consumer Services, on February 13, 2007, provided pest control services in violation of Section 482.165(1), Florida Statutes (2006), whether he applied a pesticide in a manner inconsistent with its label in violation of Florida Administrative Code Rule 5E- 14.106(1), and, if so, what disciplinary action should be taken against him.
Findings Of Fact Petitioner, the Florida Department of Agriculture and Consumer Services, Bureau of Entomology and Pest Control (hereinafter referred to as the “Bureau”), is charged with the responsibility of administering and enforcing the provisions of Chapter 482, Florida Statutes, the “Structural Pest Control Act.” At the times relevant to this matter, Respondent Larry Kravitsky was not licensed to perform pest control services. While he had applied for an identification card with the Bureau, that application had been denied. At the times relevant to this matter, Cara Beth Walker resided at 6485-4 Bay Club Drive, Fort Lauderdale, Florida (hereinafter referred to as the “Property”). At the times relevant, Sears Pest Control Incorporated, d/b/a Ship Shape Pest Control (hereinafter referred to as “Ship Shape”), was a licensed pest control business in the State of Florida. Ship Shape, owned by Mr. Kravitsky’s brother, Alan J. Kravitsky, was qualified to conduct pest control at the times relevant through Lori Kelley. The evidence failed to prove that anyone at Ship Shape had authorized Mr. Kravitsky to perform pest control services in June 2006. On June 5, 2006, John McDonough, then in the employ of Ship Shape, arrived at the Property, where he had previously provided treatment for ants. Mr. McDonough, who applied for a Pest Control Employee-Identification Card on June 9, 2006, which was approved as of June 10, 2006, was not a certified operator in charge or even familiar with rodent control, came to the Property because of a problem Ms. Walker was having with what she believed were rodents. When Mr. McDonough arrived, he told Ms. Walker that he had to wait for Mr. Kravitsky and the equipment necessary to perform any treatment to arrive. Ms. Walker was unable to remain at the Property because of her employment, so she left before the treatment was completed. While Ms. Walker testified as to Mr. Kravitsky’s arrival and initial involvement in the treatment, that testimony has been rejected as unconvincing. There were simply too many inconsistencies in Ms. Walker’s testimony concerning what took place on June 5, 2006, and with the more convincing testimony of Carlos Rojas to be given any credence by this finder of fact. What the evidence did prove, however, is that at some time after Mr. McDonough arrived at the Property, Mr. Kravitsky and Mr. Rojas arrived in separate vehicles. Mr. Rojas was also employed by Ship Shape but did not have a Pest Control Employee- Identification Card or pest control license. Mr. Rojas had been directed by Mr. Kravitsky to go to the Property that morning. Mr. Kravitsky brought electrical cords, a drill, and an electric duster to the Property. The electric duster was filled with Ditrac, a powder used to eliminate rodents. Mr. Rojas was not aware of what the powder was and had no experience using an electric duster. Mr. Kravitsky did not try to explain what the electric duster was for or how to use it. Instead, Mr. Kravitsky instructed Mr. Rojas to follow Mr. McDonough’s instructions. Mr. Kravitsky then left the Property, leaving Mr. McDonough in charge. Mr. Rojas was told by Mr. McDonough to drill holes in the walls. Next, Mr. Rojas was told to plug the electric duster into an electric outlet and then place a nozzle from the electric duster in the holes that had been drilled. Mr. Rojas was told to turn the duster on and to leave it on from one to three minutes in each hole. Mr. Rojas followed these instructions. The operation took approximately an hour to complete, at which time Mr. Kravitsky returned. All three men then left the Property. The evidence failed to prove that anyone other than Mr. Kravitsky was involved in authorizing the treatment of the Property on June 5, 2006. Lori Kelly, the certified operator in charge of Ship Shape knew nothing about the job until after it was completed. At no time did Ms. Kelly direct or authorize the use of Ditrac at the Property. Ms. Kelly became aware of the treatment of the Property when Mr. Kravitsky told her that she would be contacted about the job. While she could not recall at hearing whether she had been asked by Kravitsky to say that she had been present during the treatment, she signed a statement on July 7, 2006, indicating that she had been. While she acknowledged that the statement was given when her memory was probably better, she did not testify that the statement refreshed her memory. Mr. Kravitsky’s and Mr. McDonough’s account at hearing of what transpired on June 5, 2006, at the Property is rejected as not credible. The Bureau in proposed findings of fact 11, 12, 14 and 15 of Petitioner’s Proposed Recommended Order explain in detail some of the reasons why Mr. Kravitsky’s testimony has been rejected. Information obtained from David Beswick by the Bureau, however, has not been relied upon in making this or any other finding in this Recommended Order because that information is hearsay. Mr. Kravitsky admitted to Ms. Walker on or about June 16, 2006, that the powder used on June 5, 2006, was Ditrac. He also admitted to her that three pounds of Ditrac had been used. Several weeks after the treatment at the Property, Mr. Kravitsky admitted to Mr. Rojas that the treatment had been a disaster and warned Mr. Rojas that someone from Petitioner would be contacting him about the job. Mr. Kravitsky told Mr. Rojas to decline to talk about the treatment because he would be represented by legal counsel provided by Mr. Kravitsky. The Bureau, following established procedures, took samples from different areas of the Property on June 16, 2006. Additional samples were taken on June 26, 2006, by Mary Cohen, who was accompanied by Richard Lucas. Again, established procedures, described in detail by Ms. Cohen, were followed. The samples taken at the Property were tested by Patty Lucas, Director of the Bureau’s Pesticide laboratory. Ms. Lucas utilized procedures accepted in the scientific community to determine where Diphacinone, the active ingredient in Ditrac was present. Two of the samples taken on June 16, 2006, and two of the samples taken on June 26, 2006, tested positive for Diphacinone. These tests results are consistent with Mr. Kravitsky’s admission to Ms. Walker that Ditrac had been used in the treatment of the Property. The Ditrac label, Petitioner’s exhibit 3, contains the following “PRECAUTIONARY STATEMENTS HAZARDS TO HUMANS AND DOMESTIC ANIMALS WARNING” concerning use of the chemical” May be fatal if swallowed or absorbed through the skin. Do not get in eyes, on skin or on clothing. Wear protective clothing and rubber gloves. Wash arms and face with soap and water after mixing or handling and before eating, drinking, or using tobacco. Remove contaminated clothing and wash before reuse. The label also warns that Ditrac is a “RESTRICTED USE PESTICIDE Due to Acute Oral Toxicity” and that it is “[f]or retail sale to, and use only by, Certified Applicators, or persons under their direct supervision and only for those uses covered by the Certified applicator’s Certification.” Finally, of importance in this case, the Ditrac label includes the following instruction concerning “APPLICATION DIRECTIONS: . . . Do not use power dusting devices ” Mr. Kravitsky, contrary to the warnings and directions for use of Ditrac, without authorization by anyone at Ship Shape, and without any license or other authorization from the Bureau, directed Mr. Rojas to use an electric duster filled with Ditrac in the Property. His actions constituted the practice of pest control and the use of a pesticide in a manner inconsistent with the pesticide’s label.
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 finding that Larry Kravitsky violated Section 482.165, Florida Statutes, and Florida Administrative Code Rule 5E-14.106(6), as alleged in the Administrative Complaint and imposing a fine in the amout of $4,000.00. DONE AND ENTERED this 2nd day of June, 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 2nd day of June, 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
Findings Of Fact Respondent is licensed by the State of Florida, Department of Health and Rehabilitative Service as a pest control service authorized to perform all functions for which such organizations may be licensed. Gilbert Bellino was certified operator for Respondent from prior to the earliest charge in the Administrative Complaint until mid-1977. He was certified in the four types of treatment authorized by pest control companies, viz. fumigation, general household pest control, including rodent control, termite or other wood infesting organisms control, and lawn and ornamental pest control. A certified operator is required to supervise and direct the activities of all employees engaged in pest control. Many of the complaining witnesses made their first contact with Respondent when answering an advertisement for a onetime household pest treatment and a free termite inspection. Lloyd Green responded to an ad in which Respondent offered a spray treatment of the yard and house for $15. Folsom and Jones appeared and after an inspection of his house advised Green that he had dry wood and subterranean termites and induced him to sign a contract to treat them at a price of $286. After reflection and before any work was done Green called and cancelled the contract. He had the house inspected by Mr. Chapman of Chapman Pest Control who found no evidence of active infestation. All evidence Chapman found of wood damage was done prior to the timber having been processed. The house was later inspected by David Jones, District V Entomologist and he too found no evidence of active infestation. A second inspection of Green's home was made by Jones in company with Casale, the President of Respondent. The only evidence found was one hole in a bed slat which had occurred before the lumber was processed. Turpentine beetles and pine sawyer beetles are wood borers that attack trees but not processed lumber. Once lumber is processed any further damage from these beetles is highly improbable if not impossible. Evidence of the damage they have caused will remain in the wood but is readily distinguishable from an active infestation by one with almost any training in pest control. Wood borers make round holes and any eliptical hole found in timber is indicative that the hole was made before the wood was processed. The oblique angle to the borer's tunnel cut by the saw when the lumber was processed causes an eliptical hole. Charles Casale visited Robert Rankin's house for a free termite inspection and identified himself as an employee of Respondent. He was accompanied by another man who inspected the crawl space under the house. Upon completion of the inspection Casale advised Rankin he had an infestation and needed treatment which would cost $300. After getting an opinion from another pest control company that he did not have termites Rankin called HRS and David Jones inspected the entire house. At this inspection Jones found no evidence of active infestation but a colony of fleas from Rankin's two dogs. At the time of Casale's inspection application for an identification card had not been submitted for Casale. Thelma P. Wray contracted with Respondent for fumigation of her house. No written instructions were given her by Respondent, nor was she advised to remove medicines. She was advised to remove only milk cartons, cheese and open food. The only warning sign placed on front and rear of house during fumigation (Exhibit 4) on November 10, 1974 did not show type of fumigant used and stated house is safe for reentry at 10:30 a.m. December 11, 1974. This sign appeared on the house the evening of December 10, 1974 and was placed only at the front and rear. No notice of this fumigation was provided to the County Industrial Hygienist who maintains records of notices of all fumigations. Neither Mr. nor Mrs. Chaney testified. No one having personal knowledge was called to identify Exhibit 6 and no evidence was offered that Larry A. Donald, Jr. was employed by Respondent and visited the Cheney home without a valid identification card. Mrs. Ruby Moser did not testify. No witness was produced to testify regarding Phillip Jones' visit to the Moser home on June 10, 1975 or identify Exhibit 7. Neither Mr. nor Mrs. Donald R. Seldes testified. No evidence was presented regarding the alleged visit of Bill Gillian, while an employee of Respondent, to the home of the Seldes. Judith Bashline was contacted by Respondent through telephone solicitation for special pest cleanout and termite inspection. One man sprayed for the pest cleanout and he was followed by Phillip Jones and Ken Ely, Jr. who, after inspecting the attic, advised her she had an infestation in the attic in a dormant state which needed immediate treatment. She entered into a contract for spot treatment for $190. After Jones and Ely left Mrs. Bashline began having misgivings and called another pest control company for information. She was referred to HRS and there contacted David Jones who inspected the property. Upon inspection Jones found no evidence of active infestation - only the preprocessed type damage found in the other homes. When Helen M. Hopper purchased her home at 1037 - 12th Street North, St. Petersburg, Florida she acquired a subterranean termite policy from Respondent. She then started monthly sprayings with Respondent. After the first spraying on September 16, 1975, Ken Ely, Jr., an employee of Respondent, went into Hopper's attic and told Mrs. Hopper she had borers in the roof and needed immediate treatment to save the roof. After he left she called another pest control company for verification. When that company inspected the attic they reported no problem with borers. She then called HRS and David Jones inspected the premises October 24, 1975 and in the attic he found only old damage which had occurred before the wood was processed. There was no infestation for which treatment was indicated. When Donald R. Bond II and his wife purchased a home his mother recommended they use Gulf Coast Pest Control. In January, 1977 Robert R. Plowman, an employee of Respondent, advised the Bonds that they had powder post beetles and dry wood termites and the attic needed to be treated. He came back that evening when Mr. Bond was home and a contract for the work was signed. The following day Mrs. Bond had two other pest control companies inspect the house. Whey they advised her there was no evidence of active infestation she cancelled her contract and called HRS. On February 10, 1977 David Jones inspected her property. He found no evidence of borer or termite infestation; however Jones did find evidence of rat infestation. On June 26, 1976 Robert R. Plowman, an employee of Respondent, inspected the home of Rita M. Spera at 9783 - 52nd Avenue North, St. Petersburg, Florida and reported to her that there was an infestation of wood borers in the attic and she needed to have fumigation. The previous year the Speras had replaced the shingles on the roof and had found the wood in good condition. Accordingly Mrs. Spera really didn't believe Plowman and called HRS for verification. When David Jones Inspected the house on July 2, 1976 he found only evidence of old damage that had occurred before the wood was processed. No evidence of active infestation was observed. Mrs. Ellen M. Hameroff received a telephone solicitation from Respondent for a cleanout and termite inspection. She accepted the offer and on September 2, 1976 Robert R. Plowman, an employee of Respondent, inspected her attic and reported that powder post beetles were present and treatment was needed which would cost $200 to $400. Plowman returned that evening to talk with Dr. Hameroff but they didn't sign a contract. The following day another pest control company was contacted for an inspection. They reported no infestation. She then called HRS and on November 22, 1976 David Jones inspected the property and found only evidence of old damage. On September 1, 1977 William C. Bargren, Scott Askins and F. R. DuChanois, Entomologists with HRS inspected the Hameroff property. They found evidence that pine sawyer beetles had been in the tree from which some sheathing boards in the attic had been processed. There was no evidence of infestation in the Hameroff home. In December, 1976 Robert L. Dill had a spray and free inspection by Respondent on his home at 1551 Citrus Street Clearwater, Florida. Following an inspection of the home, Robert R. Plocnan and John D. Lucas, employees of Respondent, advised Dill that he had powder post beetles in the attic, ceiling and floor under the house and needed treatment. Before agreeing to the treatment for the powder post beetles and preventive treatment for termites for which Respondent wanted $500, Dill had two other pest control companies inspect the property. Both of these companies advised Dill he had no infestation. Jimmy Robinson of Exterminator Terminix, International, a certified operator, inspected the Dill property on November 22, 1976 and found no evidence of powder post beetles or termites for which treatment was indicated. He noticed no damage to floor but did see some evidence of borers before the wood was processed. When Dill reported the incident to HRS, David Jones inspected the property on January 20 and 26, 1977, the second time in company with the Casales, Plowman and Donald. Damage to wood in the floor was done before the lumber was processed and no infestation was present for which treatment was indicated. Lawrence A. Donald, an employee of Respondent, holds a certified operator's license and he found evidence of "tremendous damage due to boring animals" under Dill's house. He opined that there were live larvae in the wood, however, his credibility and expertise left a great deal to be desired. During a monthly contract spraying Robert R. Plowman, an employee of Respondent, told Mrs. Shirley I. Bond that she had powder post wood borer beetles in the attic of her home at 6701 - 19th Street North, St. Petersburg, Florida and needed to have the attic power dusted. Mrs. Bond gave Plowman a check for $295 but after her daughter-in-law's experience, stopped the work. She called HRS and David Jones inspected her property on April 14, 1977. He found no evidence of infestation and in Jones' opinion the power spray of Dridie (a trade name for silica gel) would not be appropriate to treat dry wood termites or powder post beetles. Raymond L. Jackson employed Respondent for the advertised "clean-out" and free inspection. On January 6 and 7, 1977 Robert R. Plowman, an employee of Respondent, inspected Jackson's property at 6243 - 6th Avenue South, St. Petersburg, Florida and advised Jackson that he had active termites and powder post beetles and needed treatment. Jackson signed a contract and paid Plowman $300 for the work. About two weeks later two men power dusted Jackson's attic. After reading an article in the newspaper about powder post beetles Jackson called HRS and his property was inspected by Askins on July 26, 1977 and by Askins and Bargren on August 10, 1977. The only evidence of damage they found was that caused by turpentine beetles prior to the wood being processed. In their opinion no treatment was indicated before the power dusting was done. Mrs. Helen Stambaugh had a "clean-out" and free termite inspection in July, 1977 at her home at 2518 - 67th Avenue South, St. Petersburg, Florida by Respondent. Larry D. Brown, an employee of Respondent, to whom an application for identification card had not been submitted, told Mrs. Stambaugh that dry wood termites were infesting her garage and treatment was necessary. Spot treatment was offered for $130. She contacted another pest control company who, after inspection, advised that no treatment was indicated. She then called HRS and on July 20, 1977, Bargren and Askins inspected her property and found only evidence of old turpentine beetle damage in the garage which had occurred before the wood was processed. No infestation for which treatment was indicated was observed. In October, 1975 representatives from Gulf Coast Pest Control, Louis Casale, the company manager, Carmine Casale the owner and Gilbert Bellino, the certified operator, met with HRS representatives in Jacksonville to discuss the numerous complaints HRS had received about Respondent and to formulate remedial action. At this meeting the need for additional training of their salesman was discussed in connection with the complaints filed by Green, Rankin, Wray, and others with particular emphasis on the need to train their operators to distinguish old damage in the preprocessed tree from damage requiring correction. Respondent agreed to increase their training to improve the quality of their inspectors. Respondent has discharged all of the salesmen who made the misrepresentations noted above. Plowman was finally discharged because "he was too dumb" to learn to distinguish between old damage not requiring treatment and new damage which did require treatment. However, Plowman was continued as an employee even after criminal charges involving fraudulent misrepresentation had been filed against him.
