09-002300 Larry Kravitsky vs. Department Of Agriculture And Consumer Services
 Status: Closed
Recommended Order on Monday, August 10, 2009.


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Summary: The application for pest control employee's ID is denied due to a violation in DOAH Case No. 07-5600PL.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8LARRY KRAVITSKY, )

11)

12Petitioner, )

14)

15vs. )

17) Case No. 09-2300PL

21DEPARTMENT OF AGRICULTURE AND )

26CONSUMER SERVICES, )

29)

30Respondent. )

32)

33RECOMMENDED ORDER

35The case came before Larry J. Sartin, an Administrative Law

45Judge of the Division of Administrative Hearings, on a

54stipulated record.

56APPEARANCES

57For Petitioner: Larry Kravitsky, pro se

633300 South Ocean Boulevard

67Apartment 917

69Highland Beach, Florida 33487

73For Respondent: David W. Young, Senior Attorney

80Office of the General Counsel

85Department of Agriculture and

89Consumer Services

91Mayo Building, Suite 520

95407 South Calhoun Street

99Tallahassee, Florida 32399-0800

102STATEMENT OF THE ISSUE

106The issue in this case is whether an application for a pest

118control employee-identification card filed by Respondent, Larry

125Kravitsky, with Petitioner, the Department of Agriculture and

133Consumer Services, should be denied for the reasons stated in

143Administrative Complaint # A61227, BEPC Case # 09-0850.

151PRELIMINARY STATEMENT

153On or about April 8, 2009, Respondent, the Department of

163Agriculture and Consumer Services, Bureau of Entomology and Pest

172Control, issued Administrative Complaint # A61227, BEPC Case #

18109-0850, RE: Amended Notice of Denial of Application for Pest

191Control Employee-Identification Card for Larry Kravitsky

197Submitted on January 6, 2009. Petitioner’s application was

205denied because of alleged wrongdoing which was the subject of an

216Administrative Complaint and Settlement Agreement, Notice to

223Cease and Desist, BEPC Case Number 06-1951, Administrative

231Complaint Number A47018. The latter Administrative Complaint

238was the subject of DOAH Case No. 07-5600PL, a case also assigned

250to the undersigned.

253On or about April 10, 2009, Petitioner disputed the facts

263upon which the Administrative Complaint in this case is based

273and requested a formal administrative hearing pursuant to

281Sections 120.569, and 120.57(1), Florida Statutes (2008). On

289April 29, 2009, the matter was filed by Respondent with the

300Division of Administrative Hearings requesting that an

307administrative law judge be assigned to conduct the formal

316hearing requested by Respondent. The matter was designated DOAH

325Case No. 09-2300 and was assigned to the undersigned.

334In response to an Initial Order entered in this case,

344Respondent filed Respondent’s Response to Initial Order and

352Motion to Consolidate. In this pleading, Respondent requested

360that this case be consolidated with DOAH Case No. 07-5600PL.

370Respondent pointed out in its Motion that the denial of

380Petitioner’s application for the issuance of a pest control

389employee-identification card in this case is predicated on the

398alleged wrongdoing in DOAH Case No. 07-5600PL and, therefore,

407the two cases should be consolidated. Petitioner filed

415Petitioner’s Objection to Respondent’s Motion to Consolidate. A

423motion hearing was conducted by telephone to resolve the issue.

433During the motion hearing, both parties agreed that the

442outcome of this case is dependent upon the decision in DOAH Case

454No. 07-5600PL. It was agreed, however, that it would be easier

465for the parties to address the issues raised in this case if the

478parties knew the outcome of DOAH Case No. 07-5600PL. It was

489also agreed that there was no need for an evidentiary hearing in

501this case. Therefore, it was ordered that the Motion to

511Consolidate would be denied, that no hearing would be held in

522this case, and that the parties would have 30 days from the

534entry of the Recommended Order in DOAH Case No. 07-5600PL to

545file proposed recommended orders and/or written argument in this

554case. These decisions were memorialized in two Orders entered

563June 5, 2009.

566The Recommended Order in DOAH Case No. 07-5600PL was

575entered on June 2, 2009. Respondent filed Respondent’s Proposed

584Recommended Order in this case on July 1, 2009. Petitioner has

595not filed a proposed order or written argument.

603All further references to the Florida Statutes in this

612Recommended Order are to the 2008 edition, unless otherwise

621noted.

622FINDINGS OF FACT

6251. Respondent, the Florida Department of Agriculture and

633Consumer Services, Bureau of Entomology and Pest Control

641(hereinafter referred to as the “Department”), is charged with

650the responsibility of administering and enforcing the provisions

658of Chapter 482, Florida Statutes, the “Structural Pest Control

667Act.” Among other duties, the Department is responsible for

676issuing pest control employee-identification cards.

6812. On or about February 13, 2007, the Department issued an

692Administrative Complaint and Settlement Agreement, Notice to

699Cease and Desist, BEPC Case Number 06-1951, Administrative

707Complaint Number A47018, against Larry Kravitsky (hereinafter

714referred to as the “Disciplinary Administrative Complaint”).

7213. It is alleged in Count 1 of the Disciplinary

731Administrative Complaint that Mr. Kravitsky committed a

738violation of Section 482.165(1), Florida Statutes (2006), by

746“practicing pest control in the State of Florida without a Pest

757Control Business License . . . .” In Count 2 it is alleged that

771Mr. Kravitsky violated Florida Administrative Code Rule 5E-

77914.106(1) by “[a]pplying a pesticide in a manner inconsistent

788with its labeling . . . .”

7954. On or about February 28, 2007, Mr. Kravitsky disputed

805the facts upon which the Disciplinary Administrative Complaint

813is based and requested a formal administrative hearing pursuant

822to Sections 120.569, and 120.57(1), Florida Statutes. On

830December 4, 2007, the matter was filed by the Department with

841the Division of Administrative Hearings requesting that an

849administrative law judge be assigned to conduct the formal

858hearing requested by Mr. Kravitsky. The matter was designated

867DOAH Case No. 07-5600PL and was assigned to the undersigned.

8775. An evidentiary hearing was held in DOAH Case No. 07-

8885600PL on December 18, 2008.

8936. On June 2, 2009, a Recommended Order was entered in

904DOAH Case No. 07-5600PL. The Findings of Fact, Conclusions of

914Law, and recommendation in that case are hereby incorporated by

924reference into this Recommended Order. In the Recommended Order

933Mr. Kravitsky was found to have violated Section 482.165,

942Florida Statutes, and Florida Administrative Code Rule 5E-

95014.106(6), as alleged in the Disciplinary Administrative

957Complaint. On July 14, 2009, a Final Order was entered by the

969Department in the disciplinary Administrative Complaint case.

976The Findings of Fact and Conclusions of Law set forth in the

988Recommended Order were adopted “in their entirety” and

996Mr. Kravitsky was ordered to pay a fine of $4,000.00.

10077. On or about January 6, 2009, subsequent to the issuance

1018of Disciplinary Administrative Complaint and prior to the entry

1027of the Recommended Order in DOAH Case No. 07-5600PL,

1036Mr. Kravitsky applied with the Department for a pest control

1046employee-identification card.

10488. By Administrative Complaint # A61227, BEPC Case # 09-

10580850, the Department notified Mr. Kravitsky that his January 6,

10682009, application for a pest control employee-identification

1075card was being denied based upon the following:

10831) A copy of an Administrative Complaint

1090and Settlement Agreement against Larry

1095Kravitsky dated February 13, 2007,

1100Administrative Complaint Number A47018, BEPC

1105Case Number 06-1951 is attached hereto as

1112Exhibit A. The factual allegations against

1118Mr. Kravitsky in Exhibit A are incorporated

1125by reference herein.

11282) Based on the factual allegations in

1135Exhibit A, Larry Kravitsky practiced pest

1141control on or about June 5, 2006, in the

1150State of Florida without a pest control

1157business license and without an

1162identification card in violation of Section

1168482.165(1), Florida Statutes.

11713) Based on the factual allegations in

1178Exhibit A, Larry Kravitsky applied a

1184pesticide on or about June 5, 2006, in a

1193manner inconsistent with its labeling in

1199violation of Section 5E-14.106(1), Florida

1204Administrative Code.

12064) The Department is authorized by Florida

1213Statutes, Section 482.161(1)(a) to deny the

1219application for licensure of an

1224identification cardholder for the violation

1229of any provision of Chapter 482, Florida

1236Statutes or of any rule adopted by the

1244Department pursuant to Chapter 482, Florida

1250Statutes.

12515) The alleged violations against Larry

1257Kravitsky set forth in Exhibit A were tried

1265in an administrative hearing on December 8,

12722008, before Honorable Larry Sartin

1277Administrative Law Judge in Division of

1283Administrative Hearings (DOAH) Case Number

128807-5600. A Recommended Order has not yet

1295been issued in that case.

13009. Mr. Kravitsky disputed the foregoing allegations and

1308requested a formal administrative hearing. His request was

1316filed with the Division of Administrative Hearings and designed

1325DOAH Case No. 09-2300.

1329CONCLUSIONS OF LAW

1332A. Jurisdiction .

133510. The Division of Administrative Hearings has

1342jurisdiction over the subject matter of this proceeding and of

1352the parties thereto pursuant to Sections 120.569 and 120.57(1),

1361Florida Statutes (2009).

1364B. The Burden and Standard of Proof .

137211. Mr. Kravitsky, as the applicant for a pest control

1382employee identification card, has the ultimate burden of proving

1391his entitlement thereto by the preponderance of the evidence.

1400See Department of Banking and Finance, Division of Securities

1409and Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

1421(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

1432and Pou v. Department of Insurance and Treasurer , 707 So. 2d 941

1444(Fla. 3d DCA 1998). The Department, however, has the burden of

1455proving that its rationale for the denial of Mr. Kravitsky’s

1465application is factually sound. The Department met its burden,

1474while Mr. Kravitsky did not.

1479D. Mr. Kravitsky’s Application .

148412. Section 482.161, Florida Statutes, provides the

1491Department’s authority with regard to the issuance of pest

1500control employee-identification cards. In pertinent part, the

1507Department is granted the following authority:

1513(1) The department may . . . deny the

1522application for licensure or licensure

1527renewal of, a licensee, certified operator,

1533limited certificateholder, identification

1536cardholder, or special identification

1540cardholder or any other person . . . in

1549accordance with chapter 120, upon any of the

1557following grounds:

1559(a) Violation of any provision of this

1566chapter or of any rule of the department

1574adopted pursuant to this chapter.

1579. . . .

158313. It has been found in DOAH Case No. 07-5600PL that

1594Mr. Kravitsky is guilty of violating Section 482.165(1), Florida

1603Statutes (2006), and Florida Administrative Code Rule 5E-

161114.106(1), a Department rule adopted pursuant to Chapter 482,

1620Florida Statutes.

162214. Although the Department has issued an “Administrative

1630Complaint” in this case which suggests that the Department is

1640seeking to take disciplinary action against Mr. Kravitsky for the

1650same violations found in DOAH Case No. 07-5600PL, in fact the

1661Department is exercising its regulatory authority over the

1669issuance of pest control licenses.

1674RECOMMENDATION

1675Based on the foregoing Findings of Fact and Conclusions of

1685Law, it is

1688RECOMMENDED that a final order be entered by the Department

1698of Agriculture and Consumer Services denying the application for

1707a pest control employee-identification card filed by Larry

1715Kravitsky due to his violation of Section 482.165, Florida

1724Statutes, and Florida Administrative Code Rule 5E-14.106(6), as

1732alleged in the Disciplinary Administrative Complaint and found

1740in DOAH Case No. 07-5600PL.

1745DONE AND ENTERED this 10th day of August, 2009, in

1755Tallahassee, Leon County, Florida.

1759___________________________________

1760LARRY J. SARTIN

1763Administrative Law Judge

1766Division of Administrative Hearings

1770The DeSoto Building

17731230 Apalachee Parkway

1776Tallahassee, Florida 32399-3060

1779(850) 488-9675 SUNCOM 278-9675

1783Fax Filing (850) 921-6847

1787www.doah.state.fl.us

1788Filed with the Clerk of the

1794Division of Administrative Hearings

1798this 10th day of August, 2009.

1804COPIES FURNISHED :

1807David W. Young, Esquire

1811Department of Agriculture and

1815Consumer Services

1817Mayo Building, Suite 520

1821407 South Calhoun Street

1825Tallahassee, Florida 32399-0800

1828Larry Kravitsky

18303300 South Ocean Boulevard, Apartment 917

1836Highland Beach, Florida 33487

1840Richard Ditschler, General Counsel

1844Department of Agriculture and

1848Consumer Services

1850Mayo Building, Suite 520

1854407 South Calhoun Street

1858Tallahassee, Florida 32399-0800

1861Honorable Charles H. Bronson

1865Commissioner of Agriculture

1868Department of Agriculture and

1872Consumer Services

1874The Capitol, Plaza Level 10

1879Tallahassee, Florida 32399-0810

1882NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1888All parties have the right to submit written exceptions within

189815 days from the date of this recommended order. Any exceptions

1909to this recommended order should be filed with the agency that

1920will issue the final order in these cases.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/11/2009
Proceedings: Final Order filed.
PDF:
Date: 09/10/2009
Proceedings: Agency Final Order
PDF:
Date: 08/10/2009
Proceedings: Recommended Order
PDF:
Date: 08/10/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/10/2009
Proceedings: Recommended Order. CASE CLOSED.
PDF:
Date: 07/01/2009
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 07/01/2009
Proceedings: Respondent's Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 06/08/2009
Proceedings: Order Denying Motion to Consolidate.
PDF:
Date: 06/05/2009
Proceedings: Order Establishing Filing Date for Proposed Recommended Orders and Argument.
PDF:
Date: 05/08/2009
Proceedings: Petitioner`s Objection to Respondent`s Motion to Consolidate filed.
PDF:
Date: 05/07/2009
Proceedings: Respondent`s Response to Initial Order and Motion to Consolidate filed.
PDF:
Date: 05/06/2009
Proceedings: (Petitioner`s) Response to Initial Order filed.
PDF:
Date: 04/30/2009
Proceedings: Initial Order.
PDF:
Date: 04/29/2009
Proceedings: Formal Hearing Requested filed.
PDF:
Date: 04/29/2009
Proceedings: Respondent`s Amendment to Amended Notice of Denial of Application for Pest Control Employee-Identification Card for Larry Kravitsky Submitted on January 6, 2009 filed.
PDF:
Date: 04/29/2009
Proceedings: Amended Notice of Denial of Application for Pest Control Employee-Identification Card for Larry Kravitsky Submitted on January 6, 2009 filed.
PDF:
Date: 04/29/2009
Proceedings: Agency referral

Case Information

Judge:
LARRY J. SARTIN
Date Filed:
04/29/2009
Date Assignment:
05/05/2009
Last Docket Entry:
09/11/2009
Location:
Pompano Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

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