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
The Issue The issue is whether Jonathan A. Mantay, violated the Florida Code of Ethics for Public Officers and Employees.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Respondent Mantay is subject to the Code of Ethics. Mr. Mantay, during times pertinent, was County Manager of Bay County, Florida, and is a reporting individual, as that term is used in the Code of Ethics, and is required to file annual financial disclosures with the Bay County Supervisor of Elections, as provided by Section 112.3145(2)(c). In 2001, Mr. Mantay left his position and moved to metropolitan Portland, Oregon. On or about August 31, 1999, the Bay County Commission was addressing the problem of inmate overcrowding in its county correctional facilities, which were operated by CCA. On or about that time, the county correctional facility exceeded capacity by about 352 inmates. The Bay County Commissioners decided to address the issue. The Bay County Commission directed Mr. Mantay and his staff to study the problem and to recommend courses of action. As a result of the study, two possible courses of action were recommended. One possible course of action was the adoption of the "Lifeline" program operated by CCA in Nashville, Tennessee, which CCA claimed would reduce recidivism by teaching inmates life skills and addressing drug abuse, among other things. CCA's corporate headquarters is located in Nashville. The other possible course of action was to emulate the program operated by Sheriff Joe Arpaio, of Maricopa County, Arizona. Sheriff Arpaio's program consists of housing inmates in tents that are sufficiently primitive that inmates, after having had the tenting experience, avoid repeating it either by not committing crimes in Maricopa County, or by committing them elsewhere. In order to evaluate the two courses of action, the Bay County Commission decided that three commissioners and certain staff should travel to the two sites and evaluate the programs. Mr. Mantay, Chief of Emergency Services Majka, Jr., and County Attorney Zimmerman, were among those who were designated to travel to Nashville and Phoenix. Mr. Mantay was not involved in planning the trip. He relied on the County Attorney's Office to coordinate the event. County Attorney Zimmerman called Mr. Wiggins on February 6, 2000, and inquired if CCA would pay for the airline tickets to Nashville. Mr. Zimmerman told Mr. Wiggins, when he asked CCA to pay for the trip, that having CCA pay the airfare, ". . . was the County's preferred way of doing things, and, in fact, that's when he recounted the story of the County taking some trips to New York and maybe some other places." Mr. Wiggins was not authorized by CCA to approve the payment of travel expenses for customers or others. He forwarded County Attorney Zimmerman's request to James Ball, his supervisor. Subsequently, Mr. Wiggins happened upon the CEO of CCA, a Dr. Crants, while walking about the Nashville headquarters of CCA. Dr. Crants directed Mr. Wiggins to fund the trip. Ultimately, as a result of these conversations, CCA paid Trade Winds Travel, Inc., of Panama City, Florida, for the cost of the air travel for the entire Bay County contingent to Nashville, and thence to Phoenix, and back to Panama City. The evidence is not conclusive as to whether it was the intent of CCA to fund the trip beyond Nashville, but they paid for the cost of the airfare for the entire trip. The request for the payment and the request to visit CCA in Nashville was driven by Bay County's needs, not by the needs of CCA. Bay County was one of CCA's most valued customers, however, and CCA was motivated to respond to their request. This was especially true because one of CCA's first contracts to provide correctional services was with Bay County. County Attorney Zimmerman's "marching orders" for many years was that if there was an opportunity to require a third party to pay an expense, then the third party should pay rather than Bay County. That policy is reflected in a variety of Bay County ordinances including the requirement that developers pay for the cost of permitting. The third party payor policy was also reflected in a 1997 trip where Westinghouse was required by the County Commissioners to pay for the commissioners' and County staff's trip to Vancouver, B.C., and Long Island, New York, to evaluate the transfer of the resource recovery facility to another vendor. This was the trip that County Attorney Zimmerman discussed with Mr. Wiggins. This policy was set forth in a letter by County Attorney Zimmerman dated October 30, 1997, which informed the County Commissioners that all expenses in connection with their travel, and with the travel of staff, would be funded by Westinghouse. He further stated that, "[it] is our opinion that the payment of these necessary expenses are not 'gifts,' as that term is defined in State law." Prior to the trip to Nashville, Mr. Mantay had a discussion with County Attorney Zimmerman with regard to whether the fact-finding trip would be "legal." One of the reasons he asked that question was that County Commissioners would be traveling together and he was concerned about "sunshine" issues. County Attorney Zimmerman said that the trip was legal. Mr. Mantay also recognized that this trip, like the trip to New York and British Columbia, was different from attending a seminar alone. Mr. Mantay received his airline ticket when a courier from Trade Winds Travel brought it to him, along with an invoice that he sent to Mr. Zimmerman. On Thursday, February 24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and a television reporter, Carmen Coursey, by commercial air, to Nashville, Tennessee. On Saturday, February 26, 2000, they traveled to Phoenix, Arizona, and they returned to Panama City on Tuesday, February 29, 2000. The trip was authorized by the Bay County Commission subsequent to several public discussions concerning the need for an on-site visit to Nashville and Phoenix. There was a legitimate public purpose for the trip. Channel 13 television news reporter, Carmen Coursey accompanied the officials. It is clear that there was nothing about the trip that was accomplished sub rosa. The airfare was paid by CCA directly to Trade Winds Travel, Inc. CCA did not ask for or receive reimbursement from either Bay County or the travelers. The cost of Mr. Mantay's airfare for the entire trip was $1,257. Mr. Mantay did not learn that CCA paid for the airfare until 2003 when he was notified of the ethics investigation. Mr. Mantay at the time of the trip had no reason to contemplate the cost. After learning that CCA paid the tariff, he also learned that the cost of the trip exceeded $100. Upon arrival in Nashville, Mr. Mantay, and the other travelers were greeted by Mr. Wiggins, who transported them to the Downtown Courtyard Marriott Hotel in a van. The cost of the transportation was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. The value was not established. Mr. Mantay did not know who paid for the ground transportation. The travelers ate the evening meal, February 24, 2000, as a group. Someone paid for Mr. Mantay's dinner, but the record does not indicate that CCA paid for it. On Friday, February 25, 2000, Mr. Mantay and the other travelers toured the Davidson County (Tennessee) Correctional Facility from 9:00 a.m. until noon. They ate lunch at the CCA corporate headquarters provided by CCA. That afternoon they met with Mr. Wiggins and other representatives of CCA. They discussed the possibility of CCA providing "Lifeline" and "Chances" programs operated by CCA, to Bay County. That evening, at CCA's expense, Mr. Mantay and the other travelers were transported to a dinner that was paid for by CCA. The cost of the transportation and dinner was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Mantay was not aware of either the cost of the dinner or who paid for it. Mr. Mantay and the other travelers stayed two nights at the Marriott at a cost of $224.24. The cost of the hotel was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Mantay learned after checking out from the Marriott, on February 26, 2000, when he attempted to pay a personal telephone bill, that CCA had paid the hotel bill, but there is no evidence of record that he knew the amount, or that it was an amount more than $100. No evidence was adduced proving that Mr. Mantay reasonably believed at that time that it was of a value of more than $100. Mr. Mantay paid cash for his personal telephone call during the check-out process. On Saturday, February 26, 2000, Mr. Mantay and the other travelers departed for Phoenix by air and observed Sheriff Arpaio's program the following Monday morning. They also toured the Phoenix Fire Department. The travelers, with the exception of County Attorney Zimmerman, stayed at the San Carlos Hotel. Mr. Mantay 's hotel bill in Phoenix was paid with a credit card issued to him by Bay County. On Tuesday February 29, 2000, they all returned to Panama City. Bay County originally contracted with CCA to operate their detention facilities on September 3, 1985. This contract had a term of 20 years; however, it was amended on September 16, 1996, to reflect an expiration date of September 24, 1999. Other extensions followed. An amendment dated June 18, 2000, provided that "CCA shall operate the 'Lifeline Program' through September 1, 2001." On May 15, 2001, the contract was extended to September 30, 2006. Mr. Mantay did not derive any person financial benefit as a result of CCA paying the lodging expenses in Nashville or as a result of CCA paying for his airfare. At no time has he attempted to reimburse CCA for the cost of the trip. Mr. Mantay did not receive per diem or any amount in excess of the actual cost of the trip. The entity receiving a benefit from the trip was Bay County. Mr. Mantay had a County credit card in his possession but by County policy he was not allowed to charge meals on it. He did, as noted, use it to pay the hotel bill in Phoenix. His usual practice, when traveling on behalf of the County, is to obtain receipts and file an expense report at the conclusion of the trip. He would thereafter be reimbursed for his travel expenses. He did not file an expense report subsequent to this travel. It is found as a fact that the cost of the airfare to Nashville and back to Panama City and the cost of the hotel in Nashville totaled more than $100 and Mr. Mantay became aware that the cost, when aggregated, was more than $100. Mr. Mantay could not have learned this, however, until more than three years after the trip because that is when he learned that CCA had paid for the airfare. It was not uncommon for Mr. Wiggins and other CCA officials to appear before the Bay County Commissioners on behalf of CCA, or to otherwise interact with representatives of CCA. Brad Wiggins was a lobbyist, as that term is defined in Section 112.3148(1)(b)1., and others interacted with Bay County on behalf of CCA and they were lobbyists also. During times relevant, Bay County did not maintain a lobbyist registration system.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that Jonathan A. Mantay did not violate Section 112.3148(4), Florida Statutes, and dismissing the complaint filed against him. DONE AND ENTERED this 17th day of August, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 17th day of August, 2006. COPIES FURNISHED: Linzie F. Bogan, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Albert T. Gimbel, Esquire E. Gary Early, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32319-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32319-5709
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:
The Issue Whether the Petition for Formal Administrative Hearing that initiated this proceeding was timely filed?
Findings Of Fact On January 12, 2004, the Department of Environmental Protection issued a letter (the "Letter of Consent") to the Ellenthals that stated the following: "Ira & Judith Ellenthal are hereby authorized to proceed with the repair of approximately 674 sq. ft. of an existing dock and install two (2) boat lifts within the Bay of Florida." Department Ex. 7. The Letter of Consent proclaimed that it constituted "sovereign lands authorization," id., and referenced: Monroe County - ERP File No. 44-0223322-001 Florida Keys Ecosystem Management Area. Id. The Letter of Consent also shows the location of the activity it authorized as offshore of Lot 16, Block 6 of the Buccaneer Point Subdivision located on Bounty Lane in Key Largo. Page 5 of the Letter of Consent provides to parties whose substantial interests are affected by the Department's action a notice of their rights, in pertinent part, as follows: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (hearing) under section 120.569 and 120.57 of the Florida Statutes. * * * In accordance with rules 28-106.111(2) and 62-110.106(3)(a)(4), petitions for an administrative hearing must be filed within 21 days of publication of the notice or receipt of written notice, whichever occurs first. Under rule 62-110.106(4) of the Florida Administrative Code, a person whose substantial interests are affected by the Department's action may also request an extension of time to file a petition for an administrative hearing. The Department may for good cause shown, grant the request for an extension of time. * * * A timely request for an extension of time shall toll the running of the time period for filing a petition until the request is acted upon. Upon motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable Id. at 5. neglect, the Department may also grant the requested extension of time. Prior to the issuance of the letter, Petitioner Potter had not requested that the Department give him notice of the Department's decision on the Ellenthal's application. Tr. 19. Petitioner Potter's house is two houses to the south of the Ellenthal property. The distance between the Ellenthal dock and Mr. Potter's dock is between 130 and 131 feet by Mr. Potter's estimation. Mr. Potter sees the Ellenthal property on average "more than one time daily." Tr. 40. Mr. Potter requested and was provided access to the file maintained by the Department on the Ellenthal property (the "Ellenthal File") on at least four separate occasions: January 25, 2009; April 30, 2009; April 9, 2010; and July 28, 2010. The Letter of Consent should be present in the Ellenthal File in the normal course of business. The Department's witness, an administrative assistant, whose position requires her to maintain the Ellenthal File and who provided the file to him several times had no reason to believe that the file was not provided to him in its entirety every time he requested it. Documents that reflect agency action in 2004, like the Letter of Consent, remain in the agency file even when the agency action is maintained in the Department's computer system. Nonetheless, Mr. Potter maintains that he did not see the Letter of Consent on any of the times he reviewed the file until the last time, July 28, 2010, when there is no question in his mind that he received the "whole file," tr. 89, including the Letter of Consent. Mr. Potter's purpose in reviewing the Ellenthal File was to obtain information about riparian lines that related to another case in which he was involved. He did not examine the file for any documents that related to anything other than the riparian lines issue. Mr. Potter recalled that on January 25, 2009, there was only one page in the Ellenthal File and it was not the Letter of Consent. It was a document "from the State Bureau of Mapping and Surveying." Tr. 27-28. On the two times in the month of April in both 2009 and 2010 that he requested and reviewed the Ellenthal File looking for information about riparian lines, Mr. Potter was unable to recall what documents were in the file. On the April 9, 2010, visit to the Department's offices, Mr. Potter copied aerial photographs from the Ellenthal File. In answer to the question what other documents were in the file at that time, Mr. Potter responded: I don't recall . . . I wasn't looking for anything other than . . . a photograph . . . overhead riparian line drawings. That's it. That's all I looked at. I wasn't looking at anything with words on it. Tr. 88 (emphasis added). On August 11, 2010, fourteen days after reviewing the file on July 28, 2011, Mr. Potter requested an extension of time to file a petition for an administrative hearing. The request was granted. The Order granting the extension allowed Mr. Potter to file a petition until September 27, 2010. But the order warned: "This Order does not constitute a determination that the request for an extension of time is timely or that a petition for an administrative hearing regarding Department File No. 44-0223322-001 filed on or before September 27, 2010, is or will be considered timely." Mr. Potter filed the petition for formal administrative hearing on September 27, 2010, within the time allowed by the Department's order granting the extension of time for its filing. The Department filed a motion to bifurcate the hearing so that the single issue of whether the petition is timely or not could be considered separately from the merits of the petition. The motion was granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order that dismisses the Petition for Formal Administrative Hearing that initiated this case. DONE AND ENTERED this 14th day of October, 2011 in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2011. COPIES FURNISHED: Brynna J. Ross, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 James Michael Porter, Esquire James M. Porter, P.A. 1 Southeast 3rd Avenue, Suite 2950 Miami, Florida 33131 Harry E. Geissinger, III, Esquire Harry Geissinger Law Office Post Office Box 2218 Palm Beach, Florida 33480 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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 After working for other exterminating companies since 1970, respondent Raul O. Gonzalez joined with his wife and a Mr. Zwass to form Nationwide Exterminating Company, a Florida corporation organized originally as a vehicle for Mr. Gonzalez's extermination business but eventually also employing roofers. When respondent and Mr. Zwass came to a parting of the ways, respondent decided to form his own company. On January 20, 1978, he wrote petitioner that he was "resigning all duties with [Nationwide Exterminating Company) as of Jan 30 1978," petitioner's exhibit No. 1, and requested cancellation of his Nationwide Exterminating Company identification card, effective January 30, 1978. On March 8, 1978, petitioner received respondent's application for a pest control business license for Nationwide Professional Enterprises, Inc. (NPE), but returned the application to respondent for his signature. Petitioner received the application a second time on March 14, 1978, and issued a pest control business license for NPE to respondent on March 17, 1978. Between January 31, 1978, and March 16, 1978, inclusive, respondent undertook 12 assignments for Target Pest Control (Target). Charles M. Kirby, Target's proprietor, holds a certified fumigator's license but prefers that somebody else do fumigation for Target, and had regularly subcontracted this work to Nationwide Exterminating Company. After respondent decided to leave Nationwide Exterminating Company, he told Juan Espinoza, an employee of Target, that he could not continue fumigating for Target under the authority of Nationwide Exterminating Company's license. Either Mr. Kirby or Mr. Espinoza was present for the discharge of fumigant at each of the dozen jobs respondent performed for Target during the period January 31, 1978, to March 16, 1978. The Dade County Department of Public Health got no written notice that any of these jobs were to be performed. Signs required to be posted at the fumigation sites bore Target's name. Target made no application for an identification card for respondent and respondent did not suggest that this be done. Except for the work done for Target, respondent did no pest control work from January 31, 1978, to March 16, 1978, with the possible additional exception of a job at 2881 East 9th Avenue on January 31, 1978. Respondent's letter to petitioner of January 20, 1978, was written on stationery whose letterhead reads "Nationwide Termite and Roofing." Petitioner's exhibit No. 1. Petitioner had earlier received correspondence from respondent in an envelope, postmarked October 6, 1977, indicating the sender was "Nationwide, Inc. Termite & Roofing Div." Petitioner's exhibit No. 2. This name has not been registered in petitioner's records. D. B. Lieux saw two of respondent's trucks marked "Nationwide Pest Control" on March 20, 1978. The trucks were originally marked "Nationwide Exterminating Company." Even before organizing NPE, Mr. Gonzalez felt a need to change the name of the original corporation because of the confusion that might arise for customers writing checks to Nationwide Exterminating Company as payment for work on their roofs. As a result, Mr. Gonzalez instructed Nationwide Exterminating Company's bank to cause its records to reflect additional names under which the Company might do business. Mr. Larry J. Lancaster, an employee of the Dade County Department of Public Health familiar with pest control companies in Dade County, is unaware of any other such company with the word "Nationwide" in its name and was not misled by receiving an envelope indicating the sender's name was Nationwide Termite and Roofing, Inc. Mr. Gonzalez never used any name with the intent to mislead. On the afternoon of March 17, 1978, D. B. Lieux, at that time an entomology inspector in petitioner's employ, visited the home of Juan Martinez, which respondent and his employees had covered with a tarpaulin tent. The house was ringed with sand-filled vinyl-skinned cylindrical "snakes" lying atop the tarpaulin so as to prevent the escape of fumigant. Such snakes were also placed on the roof of the house. It was a very windy day. To prevent the edges of the tarpaulin from flapping, the portion outside the circle formed by the snakes was folded houseward over the snakes and weighted down with miscellaneous objects. Mr. Lieux returned to the Martinez residence the following day and found clearance notices posted at the front and rear entrances to the house but not at either side door. The clearance notices indicated that the premises had been found safe for human occupancy at nine o'clock on the morning of March 18, 1978, but forbade entry until five o'clock in the afternoon of the same day. This form of clearance notice is used by 10 or 15 exterminating companies in Dade County alone. While on his way to work, on April 12, 1978, Mr. Lancaster noticed one of respondent's tents over a building near Mr. Lancaster's own residence. He noticed three holes in the tarpaulin on the west side of the building and undated warning signs posted on the premises. When Mr. Lancaster arrived at his office at the Dade County Department of Public Health, he checked to see whether the Department had received a "fumigation notification" with respect to the building over which respondent's tent had been draped, but found none. Towards the middle of the day, Raymond J. Brooks, vice-resident of NPE, received a telephone call from the Dade County Department of Public Health. As a result Mr. Brooks went to the site and taped up the holes in the tarpaulin. Later in the afternoon, Mr. Brooks returned with Mr. Gonzalez who also inspected the tarpaulin, before releasing fumigant into the building. At that time, Mr. Brooks filled out the warning notices that had already been posted. Tarpaulin tents like those respondent uses may cost $475.00 and fumigators commonly use masking tape to repair tears in the fabric. Richard Wayne Strait and Edward J. Stys, like Mr. Lancaster, had responsibility for handling "fumigation notifications" received by the Dade County Department of Public Health. Fumigators are supposed to furnish the Department written notice of their intention to fumigate a building the day before the job is done, allowing Department employees opportunity to make spot checks to enforce compliance with safety regulations. In practice, a notice received the same day as the job was to be done was not marked late, and fumigators commonly telephoned notice, only submitting a written "fumigation notification" after the job was done. Although Messrs. Lancaster, Strait and Stys did not remember getting such telephone calls from anybody on behalf of NPE or Nationwide Exterminating Company, other employees of the Dade County Department of Health sometimes take these telephone messages from fumigators. Mr. Brooks could not remember a single time that he had been in respondent's office and learned of plans to fumigate that he had failed to notify the Department of Health by telephone, but conceded that he was not always in respondent's office. In February of 1978, the Dade County Department of Health received a group of respondent Gonzalez's "fumigation notifications" for January jobs in an envelope that was not postmarked. After discharging a secretary in January of 1978, respondent discovered "fumigation notifications" for jobs that had already been done sealed in envelopes which had never been sent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent Gonzalez's pest control operator's certificate and his special identification card for five (5) days. DONE and ENTERED this 1st day of December, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Morton Laitner, Esquire 1350 N.W. 15th Street Miami, Florida 33125 William J. Swink, Esquire 2915 S.W. 13th Street Miami, Florida 33145
The Issue Whether Florida Administrative Code Rule 15C-16.012(5)1/ (the “Rule”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The following findings of fact are based on the testimony and exhibits admitted at the final hearing and the agreed facts in the pre-hearing stipulation. Parties Petitioner, FADA, is a not-for-profit trade association of licensed franchise motor vehicle dealers in Florida. FADA is organized and maintained for the benefit of approximately 800 members, which includes 85 to 90 percent of the licensed franchise motor vehicle dealers in Florida. FADA regularly coordinates the common interests of its members and represents its members before the Legislature with respect to legislation and rules affecting franchised dealers. Respondent, the Department, is the agency of the State of Florida responsible for regulating electronic filing system (“EFS”) and the EFS agents. The Department adopted the Rule, which became effective December 14, 2010. The Rule was amended on November 22, 2011, but has not been amended since that time. Titling and Registration of Vehicles Every motor vehicle that is to be driven on a road in Florida must be registered with the Department. § 320.02(1), Fla. Stat. The initial registration a customer receives may either be temporary or permanent. If the initial registration is temporary, there is a period of 30 days during which the temporary registration must be converted to a permanent registration. In Florida, sellers of motor vehicles are required to effect transfers of title and registration as part of a sale of motor vehicles. The EFS provides an electronic method for the titling and registration of motor vehicles. EFS agents are those persons or entities who are engaged in selling products for which a title or registration is needed. Fla. Admin. Code R. 15C-16.010(1)(a) and (b). A substantial number of FADA’s members are EFS agents. The EFS was developed in the 1990s to permit dealers to make titling and registration more efficient. The system also enhanced safety during a roadside stop for law enforcement by making registration information readily available. At the beginning of the process, an EFS agent, who could be a motor vehicle dealer, like the members of FADA, sells a vehicle and electronically submits information through the EFS to a Certified Service Provider (“CSP”). The CSP provides the software system that is used by EFS agents to submit titling and registration transactions for processing. Tax collectors are also part of the process and are responsible for preparing the paperwork that is submitted to finalize a titling or registration transaction. Some tax collectors outsource these responsibilities to private entities, which function as private tag agents (“PTAs”). While the EFS is a comprehensive method to electronically file vehicle title and registration transactions, there is also a limited sub-system of the EFS, Electronic Temporary Registration (“ETR”). The ETR is limited to temporary registration of vehicles. It does not involve titling. There are multiple methods for submitting the necessary paperwork for titling and/or registering a motor vehicle. This can be done manually by taking it to a public or private tag agency, and electronically by using the ETR and the EFS or the EFS only. EFS agents are subject to statutes and rules pertaining to titling and registration of motor vehicles in Florida. Rule and Statutory Authority The rule at issue in this case concerns the Department’s authority over the EFS. The Rule, 15C-16.012(5), provides: If an EFS agent charges a fee to the customer for use of the electronic filing system in a title or registration transaction, the fee shall be disclosed separately and in a clear and conspicuous manner in the sales agreement along with the other options for titling and registration. The EFS agent may not disclose or disguise this as a State or Government fee. The Rule requires that an EFS agent charging a fee to use the EFS, disclose the EFS filing fee separately and in a clear and conspicuous manner and provide other options for titling and registration. The Rule cites section 320.03(10)(a), Florida Statutes, as the law being implemented. Section 320.03(10) provides: Jurisdiction over the electronic filing system for use by authorized electronic filing system agents to electronically title or register motor vehicles, vessels, mobile homes, or off-highway vehicles; issue or transfer registration license plates or decals; electronically transfer fees due for the title and registration process; and perform inquiries for title, registration, and lienholder verification and certification of service providers is expressly preempted to the state, and the department shall have regulatory authority over the system. The electronic filing system shall be available for use statewide and applied uniformly throughout the state. An entity that, in the normal course of its business, sells products that must be titled or registered, provides title and registration services on behalf of its consumers and meets all established requirements may be an authorized electronic filing system agent and shall not be precluded from participating in the electronic filing system in any county. Upon request from a qualified entity, the tax collector shall appoint the entity as an authorized electronic filing system agent for that county. The department shall adopt rules in accordance with chapter 120 to replace the December 10, 2009, program standards and to administer the provisions of this section, including, but not limited to, establishing participation requirements, certification of service providers, electronic filing system requirements, and enforcement authority for noncompliance. The December 10, 2009, program standards, excluding any standards which conflict with this subsection, shall remain in effect until the rules are adopted. An authorized electronic filing agent may charge a fee to the customer for use of the electronic filing system. Section 320.03(10) gives the Department regulatory authority over the EFS and requires the Department to adopt rules to administer the EFS. The statute also requires that the Department adopt rules to replace the 2009 program standards. Section 320.03(10) also explicitly provides that an EFS agent is permitted to charge a fee to the customer for use of the EFS. However, there is no requirement in the statute that an EFS agent satisfy any conditions when charging the fee. Specifically, the statute does not require that the EFS agent make any type of disclosure regarding the fee or other options for titling or registration. 2009 Program Standards Respondent relies upon the language in the statute related to replacement of the 2009 program standards to support its position that section 320.03(10) provides authority for the Rule. Over the course of legislative sessions in 2009 and 2010, the regulatory authority for the EFS was transferred from the Florida Tax Collectors Service Corporation (“FTCSC”) to the Department as provided in section 320.03(10). The 2009 program standards were a set of standards used by the FTCSC for administering participation in the EFS when the FTCSC had responsibility for administering the EFS. The 2009 program standards were to remain in place until adoption of the Rule. The 2009 program standards expressly regulated certain participation requirements placed upon dealers seeking to become an approved Limited Branch Office (“LBO”), which is the equivalent of an EFS agent. One of the 2009 program standards required that dealers seeking “appointment as a participating LBO” must submit a letter agreeing to comply with certain disclosure requirements as part of a sale, including the contents of a buyer’s order. The “buyer’s order” referenced in the 2009 program standards has the same meaning in the industry as the term “sales agreement” in rule 15C-16.012(5). Under the 2009 program standards, failure of a dealer to adhere to the standards could result in loss of its LBO status. The relevant portions of the LBO participation requirements are discussed further below. Section III.A.2.a. of the 2009 program standards provided that the letter requesting approval for LBO status shall include a statement that use of the EFS will be an optional transaction and will be disclosed on the buyer’s orders as “Electronic Filing.” Similarly, section V.C.2.(d)4.b.ii. provided that a dealer’s application for LBO status may be rejected if the letter provided to the tax collector does not mention the information required in section III.A.2.a. Section III.A.2.c. provided that a dealer seeking LBO status must include in their letter to the tax collector a statement that the dealer will not represent to the EFS customers that they are required to transact title transaction business through the EFS. Likewise, section V.C.2.(d)4.b.iv. provided that a dealer’s application for LBO status may be rejected if the dealer’s letter does not include a statement that the dealer agrees not to represent to potential EFS customers that the customer is required to transact title transaction business through the EFS and pay additional charges, if applicable. The undersigned finds that these requirements of the 2009 program standards required dealers utilizing the EFS at that time to make certain disclosures for the purpose of participation as an LBO. The disclosure of fees charged to customers for use of the EFS system was not addressed in the 2009 program standards. In fact, the 2009 version of section 320.03(10) provided that a dealer “may charge a fee to the customer for use of the electronic filing system, and such fee is not a component of the program standards.” § 320.03, Fla. Stat. (2009). Different Methods for Titling and Registration In addition to the requirement to disclose the fee for use of the EFS, the Rule requires EFS agents to disclose “other options for titling and registration.” In the motor vehicle industry, there are multiple methods for titling and registration. Dealers can deal directly with county tax collectors for titling and registration, which is performed manually. Dealers can use ETR vendors for the temporary registration process. Like with the EFS, the ETR providers charge dealers a fee for use of the ETR system. A dealer that has a contract with one of the PTAs in Florida can use that PTA to process components of the titling and registration process. PTAs are entities that dealers may hire as a service provider to process registration and titling work manually. Like with EFS providers and ETR providers, PTAs charge dealers a fee for the services they provide in the titling and registration process. Given that dealers must have contracts with PTAs in order to utilize their services and that PTAs charge dealers a fee for use of their services, a dealer using a PTA for components of the titling and registration processes is not the same as a dealer interacting directly with a county tax collector. The multiple methods for titling and registration could result in multiple options for EFS agents. Uncertainty about Meaning of “Other Options” During and after the rulemaking process, Mr. Smith, the president of FADA, expressed concern about the interpretation of the requirement in the Rule to disclose “other options for titling and registration.” Mr. Smith sent a number of emails seeking clarification regarding this requirement. On December 8, 2010, Mr. Smith sent an email on behalf of FADA to Julie Baker at the Department inquiring whether the Rule meant that a dealer would have to disclose all the potential options available in the marketplace or only those options available to that particular dealer. On December 19, 2010, Mr. Smith received a response from Boyd Walden, the Department’s then chief of the Bureau of Titles and Registrations, stating that a legal opinion on the issue was being requested. Mr. Smith never received the legal opinion on the issue. Approximately two years later, on January 7, 2013, Mr. Smith sent Mr. Walden another email notifying the Department that the importance of this issue had escalated because FADA members were being sued by consumers or their representatives for failure to comply with the Rule. Mr. Smith requested guidance from the Department regarding interpretation of the Rule. Mr. Walden, as the then director of the Division of Motorist Services, responded on January 8, 2013, and offered an example of other options. For example, he suggested “the dealer informing the buyer of the option for the dealer to file the paperwork with the tax collector manually.” On January 8, 2013, Mr. Smith emailed Mr. Walden and requested a letter from the Department’s counsel clarifying what the Rule required. On October 30, 2013, Mr. Smith emailed Mr. Walden notifying the Department that dealers were continuing to be sued regarding compliance with the Rule and requesting clarification regarding the Rule. On October 30, 2013, Mr. Walden stated, “there are other options such as manual registration through the tax collector. How you offer those ‘other options’ is up to you.” Mr. Walden continued that FADA’s legal team “should decide how to best meet the ‘other options’ requirement based on the level of risk your clients are willing to assume.” Mr. Smith still had questions regarding compliance with the Rule. Mr. Walden’s responses did not clarify the meaning of “other options for titling and registration.” For example, the Rule fails to provide guidance whether the options include all possible options or only options available to the specific individual dealer. The Rule did not provide specific clarification regarding the type (permanent or temporary) of titling and registration. The ETR is an option that offers titling. However, use of EFS would be required to complete the permanent registration. Further, the Rule requires that a dealer disclose other options for titling and registration, but did not provide guidance regarding the type of options, (i.e., manual, electronic, private, or public). It also specifies “other options” but does not specify whether the disclosure includes other options that also may involve a fee. There are both electronic and manual options that require a fee. Standing The Rule affects EFS agents that charge a fee to customers for EFS filing. A substantial number of FADA members are EFS agents and charge a fee to their customers and are, thus, directly and substantially impacted by the Rule.
