06-000022RU Larry Kravitsky vs. Department Of Agriculture And Consumer Services, Bureau Of Entomology And Pest Control Status: Closed DOAH Final Order on Tuesday, November 25, 2008.

Summary: Petitioner failed to prove that procedures used by Respondent to investigate violations of Chapter 482 and make decisions to file administrative complaints or deny applications for certification are rules. The Challenge to Agency Statement is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY KRAVITSKY, )

)

Petitioner, )

)

vs. ) Case No.06-0022RU

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, BUREAU OF )

ENTOMOLOGY AND PEST CONTROL, )

)

Respondent. )

_________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on September 17, 2008, by video teleconference, with the parties

appearing in Fort Lauderdale, Florida, before Patricia M. Hart,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Larry Kravitsky, pro se

c/o Ship Shape Pest Control

4692 Powerline Road

Deerfield Beach, Florida 33073

For Respondent: David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

Whether the practices and procedures set forth in

paragraphs 6.1., 6.2, and 6.3 of the Challenge to Agency

Statements filed by the Petitioner on December 28, 2005,

constitute agency statements defined as rules but not adopted as

such, in violation of Section 120.54, Florida Statutes.

PRELIMINARY STATEMENT

In paragraph 6 of the Challenge to Agency Statements filed

with the Division of Administrative Hearings on December 28,

2005, Larry Kravitsky alleged that the following practices or

procedures of the Department of Agriculture and Consumer

Services ("Department"), Bureau of Entomology and Pest Control

("Bureau"), constitute unpromulgated rules within the meaning of

Section 120.54(4), Florida Statutes (2008) 1 :

1. The establishment [of] a particular

quantum or burden of proof, which must be

satisfied before agency action can be taken.

2. The practice of advising pest control

licensees in writing, that they are under

investigation for possible violations of

Florida Statute[s] 482 and/or its associated

administrative rules and requesting their

licensees to respond to subject allegations

with information, records or documentation.

The exact process or practice utilized by

the Department is subject to complex

variations which are not clearly or reliably

communicated so that the specific nature of

the same cannot be more specifically

described herein. These practices transpire

before the issuance of an administrative

complaint by the Department and are used to

determine the appropriateness of issuing

such complaints as well as the content and

penalties sought therein. Specific requests

have been made to the Department for the

adoption of a formalized, knowable procedure

modeled after Florida Statute[s] 455, which

requests appear to have been rejected by the

Department.

3. The creation of a review process,

pursuant to which employees of the

Department confer with each other in person,

telephonically or in writing for the express

purpose of considering investigative reports

received from the Department's inspectors

and issuing or causing to be issued

administrative complaints which seek the

imposition of substantial disciplinary

penalties upon the Department's licensees

based upon alleged violations of Florida

Statute[s] 482 and/or the Department's

administrative rules. One or more versions

of this practice of correlating and

evaluating investigative information vis a

vis some unspecified legal standard and then

rendering agency action has been utilized by

the Department for many years, with a

substantial impact upon hundreds of

different licensees.

Mr. Kravitsky requested that these agency statements be declared

invalid and unenforceable because they are rules within the

meaning of Section 120.52, Florida Statutes.

The Chief Judge of the Division of Administrative Hearings

assigned this matter to the undersigned Administrative Law

Judge, and, after numerous continuances granted at

Mr. Kravitsky's request, the final hearing was held on

September 17, 2008. At the hearing, Mr. Kravitsky presented the

testimony of Michael Page, Chief of the Bureau, but did not

offer any documents into evidence. 2 The Bureau did not present

any testimony and did not offer any documents into evidence.

The one-volume transcript of the proceedings was filed with

the Division of Administrative Hearings on October 7, 2008, and

the Bureau timely filed its proposed findings of fact and

conclusions of law, which has been considered in the preparation

of this Recommended Order. Mr. Kravitsky did not file a post-

hearing submission.

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:

1. The Department is the state agency responsible for

enforcing the provisions of Chapter 482, Florida Statutes, the

"Structural Pest Control Act." The Director of the Division of

Agricultural Environmental Services (Division) is appointed by

the Commissioner of Agriculture and is given the responsibility

by Section 570.45, Florida Statutes, to enforce the provisions

of Chapter 482, Florida Statutes. The Bureau is created in the

Division and is responsible for, among other duties,

investigating violations of Chapter 482, Florida Statutes. The

Bureau Chief makes the ultimate decision to file an

administrative complaint against a certificate-holder or to

preliminarily deny an application for certification as a pest

control operator or for an identification card for a pest

control employee. 3

2. At one time, Mr. Kravitsky was certified by the Bureau

as a pest control operator. When he applied for renewal of his

certificate, the Bureau issued a notice in 2004 that it intended

to deny the application because of alleged violations of

Chapter 482, Florida Statutes, committed by Mr. Kravitsky while

he engaged in the business of a certified pest control operator.

In 2005, the Bureau issued another notice that it intended to

deny a second application for renewal of Mr. Kravitsky's pest

control operator's certificate, based on the same allegations of

wrong-doing. And, finally, the Bureau issued a notice in 2005

that it intended to deny Mr. Kravitsky's application for a pest

control employee's identification card. 4 Mr. Kravitsky is,

therefore, substantially affected by the agency statements at

issue herein.

3. The Bureau Chief's decisions to file an administrative

complaint against a certificate-holder for violations of

Chapter 482, Florida Statutes, or to deny preliminarily

applications for a certificate, a renewal certificate, or an

employee identification card are based on information gathered

as part of an investigation of a licensee or an applicant. If

the investigation is of a certificate- or card-holder, an

investigation is initiated either as a routine enforcement

action or as the result of a consumer complaint. A field

inspector for the Bureau collects information, including

statements, affidavits, photographs, videotapes, documents, and

any information that pest control operators and employees are

required to maintain.

4. Once the information is gathered by the field

inspector, the case file is sent to the inspector's supervisor,

who reviews the case file for completeness. The supervisor

requests additional information, if necessary. Once the

supervisor considers the file complete, it is sent to the

Bureau's office in Tallahassee, Florida, where the file is given

a case number and assigned to a case reviewer who evaluates the

evidence contained in the file to determine if there is a

possible violation of the provisions of Chapter 482, Florida

Statutes. If the case reviewer finds no violation, the case is

closed. If it appears to the case reviewer that there is

evidence of a violation, an administrative complaint is drafted,

and the draft complaint and case file are sent to an enforcement

administrator or to a case manager, who independently evaluates

the evidence collected in the case. The enforcement

administrator or case manager then makes a recommendation to the

Bureau Chief regarding whether the draft administrative

complaint should be filed. Anyone reviewing the case file can

ask that additional information be gathered if he or she finds

that the file is not complete.

5. This investigation and review process is an internal

process that is not applied outside the Department, it does not

affect the private interests of any person, and it is not a

procedure that is important to the public.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.56(4), Florida

Statutes.

7. Section 120.56(4), Florida Statutes, provides that

"[a]ny person substantially affected by an agency statement may

seek an administrative determination that the statement violates

s. 120.54(1)(a)." Section 120.54(1)(a), Florida Statutes,

provides that "[e]ach agency statement defined as a rule by s.

120.52 shall be adopted by the rulemaking procedure provided by

this section as soon as feasible and practicable."

8. Section 120.52(16), Florida Statutes, defines a rule in

pertinent part as follows:

"Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term does not include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

9. Mr. Kravitsky has the burden to establish by a

preponderance of the evidence that the practices and procedures

listed in the Challenge to Agency Statements constitute rules

that have not been adopted by the rulemaking procedures provided

in Section 120.54, Florida Statutes. §§ 120.56(1)(e) and

(4)(a), Fla. Stat.

10. Virtually the same issue raised in the instant case

was addressed by Administrative Law Judge Susan B. Harrell in

two previous cases, Cirrincione v. Department of Agriculture and

Consumer Services , DOAH Case No. 05-0145RU (Final Order

January 3, 2006), and Baker v. Department of Agriculture and

Consumer Services , DOAH Case No. 05-0947RU (Final Order

January 4, 2006). Administrative Law Judge Harrell rejected the

claims in these cases that the practices and procedures that the

Bureau utilizes in investigating possible violations of

Chapter 482, Florida Statutes, are agency statements defined as

rules. Administrative Law Judge Harrell reasoned in Cirrincione

as follows:

22. The procedure that the Department

utilizes in investigating possible

violations, reviewing the investigation

files, drafting administrative complaints,

and reviewing draft administrative

complaints are followed for all disciplinary

actions. This procedure falls under the

internal memoranda exception to the

definition of a rule. The procedure has no

application outside the Department. It does

not affect the private interests of persons

who are subject to disciplinary action. At

first blush, it would appear that because

the investigatory process could end in a

penalty being imposed upon the person being

investigated that the procedure would affect

the private interests of a person. However,

a person who is subject to discipline by the

Department has no statutory right in having

the disciplinary case investigated in a

certain manner, in having certain persons

review the file before the final

determination is made to take disciplinary

action, or in having the administrative

complaint drafted or reviewed in a certain

manner. The ultimate decision to take the

disciplinary action is made by the Division

Director or Assistant Division Director and

not by lower echelon staff.

23. The investigatory process is not a

procedure that is important to the public.

Section 482.061, Florida Statutes , provides

that the Department shall appoint inspectors

to do inspections and perform investigative

work. If the inspectors find a violation,

they are required to report it to the

Department. The process that the Department

utilizes in reviewing the report and

subsequent investigative file, preparing an

administrative complaint based on the

investigative file, and reviewing the

administrative complaint for quality control

prior to the actual determination to take

disciplinary action is of no more importance

to the public than what steps an agency uses

in preparing and reviewing other types of

documents that are sent out by the agency.

11. Administrative Law Judge Harrell's reasoning is

compelling in this case and supports the conclusion that the

practices and procedures by which the Bureau investigated the

violations cited in the notices of intent to deny

Mr. Kravitsky's applications are not rules within the definition

of Section 120.52(16), Florida Statutes, and are not subject to

the rulemaking requirements set forth in Section 120.54(1),

Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Challenge to Agency Statements filed

by Larry Kravitsky is hereby dismissed. 5

DONE AND ORDERED this 25th day of November, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November, 2008.

ENDNOTES

1 / Although the Challenge to Agency Statements was filed in

2005, the 2008 edition of the Florida Statutes is the

appropriate edition to apply in this case to evaluate the

Bureau's practices and procedures with regard to investigations

and decisions to take agency action, and all references herein

to Florida Statutes shall be to the 2008 edition unless

indicated otherwise.

2 / Mr. Kravitsky focused much of his presentation at the final

hearing on allegations that the Bureau violated the Sunshine

Law, Section 286.011, Florida Statutes, when Bureau employees

allegedly secretly conferred and reached a decision to take

action against him by denying his applications for renewal

licenses as a pest control operator and his application for an

identification card allowing him to work for a pest control

company. The undersigned advised Mr. Kravitsky that he would

not be permitted to raise the issue of violations of the

Sunshine Law because he had made no allegations regarding such

violations in the Challenge to Agency Statements. And, in any

event, it would be inappropriate to raise this issue in a

challenge to agency statements defined as rules.

Mr. Kravitsky stated that he had not reviewed the Challenge

to Agency Statements for some time prior to the final hearing

and that he was prepared to address only the issue of violations

of the Sunshine Law. He requested a continuance of the final

hearing to allow him time to prepare to address the issues

raised in paragraphs 6.1., 6.2, or 6.3 of the Challenge to

Agency Statements. This request was denied because this case

has been pending for an inordinate amount of time, at

Mr. Kravitsky's request, and because Mr. Kravitsky had

sufficient notice that the final hearing on this rule challenge

would be held on September 17, 2008. Mr. Kravitsky was advised,

however, that he should proceed with his examination of Mr. Page

regarding the policies and procedures of the Bureau and that he

could address the factual and legal issues related to the issues

raised in the Challenge to Agency Statements in a written

submission to be filed after the final hearing. Mr. Kravitsky

acknowledged his right to file a written post-hearing submittal

and proceeded to question Mr. Page regarding the process by

which the Bureau investigates licensees and evaluates

investigative reports and other documentation to determine if an

administrative complaint should be filed or other preliminary

agency action should be taken.

3 / At the time of the preliminary decisions to deny

Mr. Kravitsky's applications, the director or assistant director

of the Division of Agricultural Environmental Services made the

final decision to take agency action.

4 / These preliminary denials are before the Division of

Administrative Hearings for administrative proceedings pursuant

to Section 120.57(1), Florida Statutes, in DOAH Case Nos. 04-

4061, 06-0132, and 06-414.

5 / It is noted that Mr. Kravitsky did not offer any evidence or

argument related to the issues raised in paragraphs 6.1.

and 6.2. of his Challenge to Agency Statements.

COPIES FURNISHED:

Richard Tritschler, General Counsel

Department of Agriculture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399-0810

David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399-0800

Larry Kravitsky

C/O Ship Shape Pest Control

4692 Powerline Road

Deerfield Beach, Florida 33073

F. Scott Boyd, Executive Director

Joint Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator

Administrative Code Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.