07-005600PL Department Of Agriculture And Consumer Services vs. Larry Kravitsky Status: Closed Recommended Order on Tuesday, June 2, 2009.

Summary: Respondent violated Section 482.165(1), Florida Statutes, by practicing pest control without authorization, and violated Florida Administrative Code Rule 5E-14.106(1), by not following the directions on the label of the pesticide used.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07-5600PL

)

LARRY KRAVITSKY, )

)

Respondent. )

)

RECOMMENDED ORDER

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

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on December 18, 2008, by

video teleconference at sites in Lauderdale Lakes and

Tallahassee, Florida.

APPEARANCES

For Petitioner: David W. Young, Senior Attorney

Office of the General Counsel

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399-0800

For Respondent: Larry Kravitsky, pro se

3300 South Ocean Boulevard

Apartment 917

Highland Beach, Florida 33487

STATEMENT OF THE ISSUES

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.

PRELIMINARY STATEMENT

On or about February 13, 2007, the Department of

Agriculture and Consumer Services issued an Administrative

Complaint and Settlement Agreement, Notice to Cease and Desist,

BEPC Case Number 06-1951, Administrative Complaint Number

A47018, against Larry Kravitsky. It is alleged in Count 1 of

the Administrative Complaint that Respondent had committed a

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

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

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

Respondent violated Florida Administrative Code Rule 5E-

14.106(1) by “[a]pplying a pesticide in a manner inconsistent

with its labeling . . . .”

On or about February 28, 2007, Respondent disputed the

facts upon which the Administrative Complaint is based and

requested a formal administrative hearing pursuant to Sections

120.569, and 120.57(1), Florida Statutes. On December 4, 2007,

the matter was filed by Petitioner with the Division of

Administrative hearings requesting that an administrative law

judge be assigned to conduct the formal administrative hearing

requested by Respondent. The matter was designated DOAH Case

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

The final hearing of this matter was initially scheduled

for February 11, 2008, by Notice of Hearing by Video

Teleconference entered December 11, 2007. The hearing was

subsequently continued to allow certain related criminal charges

against Respondent to be resolved. Once the criminal matter was

resolved, the hearing was scheduled for December 18, 2008.

At the final hearing Petitioner presented the testimony of

Mary Cohen, Patricia Lucas, Lori Kelley, and Michael J. Page.

Petitioner had 18 Exhibits, identified as Petitioner’s Exhibits

numbered 1, 3, 4, 8, 11 through 16, 18, 19, 22, 26, 28, and 30

through 32, admitted. Petitioner’s Exhibit 30 is the deposition

testimony of Michael Petrozzino, Petitioner’s Exhibit 31 is the

deposition testimony of Respondent, and Petitioner’s Exhibit 32

is the deposition testimony of Carlos Rojas.

Petitioner also offered the deposition testimony, marked as

Petitioner’s Exhibit 29, of Cara Beth Walker. Petitioner

informed Respondent when the deposition was taken that, due to

Ms. Walker’s employment, which necessitated her frequent

absences from the State, that it would be used in lieu of her

testimony at hearing if she were unable to the attend the

hearing. At hearing, Petitioner represented that Ms. Walker was

more than 100 miles from either hearing location. In an

abundance of caution, the deposition transcript was admitted

conditioned upon Petitioner filing e-mails from Ms. Walker

addressing her absence from the State on the date of the

hearing.

On February 24, 2009, Petitioner filed Petitioner’s Notice

of Filing e-Mails from Witness, Cara Beth Walker. On April 2,

2009, Respondent filed Respondent’s Objection to Admission of

Deposition as Evidence. After full consideration of the

pleadings, the deposition testimony of Cara Beth Walker,

Petitioner’s Exhibit 29, is admitted.

Respondent testified on his own behalf and presented

testimony from Carlos Rojas and John F. McDonough. No exhibits

were offered at hearing by Respondent. He was given ten days

from the date of the hearing, however, to file a list of

pesticides that contain Diphacinone. Respondent did so and

Petitioner filed an objection to the document. The document,

marked as Respondent’s Exhibit 1, is hereby admitted.

On March 4, 2009, the parties were informed by Notice of

Filing Transcript that the transcript of the final hearing had

been filed on March 3, 2009, and that proposed recommended

orders were to be filed on or before April 3, 2009. Petitioner

filed Petitioner’s Proposed Recommended Order on April 1, 2009.

Respondent filed Respondent’s Proposed Final [sic] Order on

April 10, 2009. Although Respondent’s submittal was late, it

does not appear that he gained any advantage by his actions.

Accordingly, both submittals have been fully considered in

preparing this Recommended Order.

On April 29, 2009, Petitioner filed a request for hearing

with the Division of Administrative Hearings in the case of

Larry Kravitsky vs. Department of Agriculture and Consumer

Services , Agency Case No. A61227. That request was designated

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

case involves the proposed denial by Petitioner in this case of

an application from Respondent for a pest control identification

card based upon the underlying facts of this case. On May 7,

2009, Petitioner in this case filed a motion to consolidate DOAH

Case No. 09-2300 with this matter. The motion was objected to

by Respondent in this case. Following a telephone conference

held on or about May 21, 2009, the motion was denied. The

issuance of this Recommended Order was delayed until the motion

to consolidate could be ruled upon.

All further references to the Florida Statutes in this

Recommended Order are to the 2006 edition, unless otherwise

noted.

FINDINGS OF FACT

1. 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.”

2. 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.

3. 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”).

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. The operation took approximately an hour to complete,

at which time Mr. Kravitsky returned. All three men then left

the Property.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.”

19. Finally, of importance in this case, the Ditrac label

includes the following instruction concerning “APPLICATION

DIRECTIONS: . . . Do not use power dusting devices . . . .”

20. 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.

CONCLUSIONS OF LAW

A. Jurisdiction .

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes (2008).

B. The Burden and Standard of Proof .

22. The Bureau seeks to impose penalties against Mr.

Kravitsky through the Administrative Complaint that include the

imposition of administrative fines. Therefore, the Bureau has

the burden of proving the specific allegations of fact that

support its charges by clear and convincing evidence. See

Department of Banking and Finance, Division of Securities and

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

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

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

(Fla. 3d DCA 1998).

23. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C. The Charges of the Administrative Complaint .

24. The Bureau has charged Mr. Kravitsky in Count 1 with

having violated Section 482.165(1), Florida Statutes, which

provides:

(1) It is unlawful for a person,

partnership, firm, corporation, or other

business entity not licensed by the

department to practice pest control.

25. In Count 2, the Bureau has charged Mr. Kravitsky with

having violated Florida Administrative Code Rule 5E-14.106(a),

which governs the “Use of Presticides – Labels, Limitations,

Precautions”:

Only those pesticides having federal or

state label registration clearance shall be

used. It shall be unlawful to use any

registered pesticide in a manner inconsistent

with its label and labeling, except as

provided by the United States Environmental

Protection Agency, the United

States Department of Agriculture, or the

Department.

D. Count 1; Alleged Violation of Section 482.165(1),

Florida Statutes .

26. In order for an individual to practice pest control in

Florida he or she must have a pest control operator’s

certificate or an employee identification card. §§ 482.111 and

482.091, Fla. Stat. At the times relevant to this matter, Mr.

Kravitsky had neither an employee identification card nor a pest

control operator’s certificate. He was, therefore, not

authorized to practice pest control in Florida in June 2006.

27. What constitutes “pest control” is defined in Section

482.021(21), Florida Statutes, to include, in part, the

following:

(a) The use of any method or device or

the application of any substance to prevent,

destroy, repel, mitigate, curb, control, or

eradicate any pest in, on, or under a

structure, lawn, or ornamental;

(b) The identification of or inspection

for infestations or infections in, on, or

under a structure, lawn, or ornamental;

(c) The use of any pesticide, economic

poison, or mechanical device for preventing,

controlling, eradicating, identifying,

inspecting for, mitigating, diminishing, or

curtailing insects, vermin, rodents, pest

birds, bats, or other pests in, on, or under

a structure, lawn, or ornamental;

. . . .

28. The Bureau has proved clearly and convincingly that

Mr. Kravitsky practiced pest control in violation of Section

482.165(1), Florida Statutes, when he directed Mr. Rojas to

drill holes for the purpose of applying Ditrac and by providing

a power duster filled with Ditrac which he instructed to Mr.

Rojas to use in the treatment of the Property.

E. Count 2; Alleged Violation of Florida Administrative

Code Rule 5E-14.106(1) .

29. In pertinent part, the instructions for use of Ditrac

limit the use of the chemical to “Certified Applicators, or

persons under their direct supervision and only those covered by

the Certified Applicator’s Certification.” The evidence proved

clearly and convincingly that Mr. Kravitsky did not comply with

this direction.

30. The directions for use of Ditrac also specify that a

power dusting device should not be used in the application of

the pesticide. The evidence proved clearly and convincingly

that Mr. Kravitsky did not comply with this direction.

31. Accordingly, it is concluded that the Bureau proved

clearly and convincingly that Mr. Kravitsky violated Florida

Administrative Code Rule 5E-14.106(1), as alleged in the

Administrative Complaint.

F. Appropriate Penalty .

32. Section 482.161, Florida Statutes, provides the

Bureau’s authority to discipline Mr. Kravitsky in this matter.

In pertinent part, the Bureau is granted the following

authority:

(1) The department may issue a written

warning to or impose a fine against, or deny

the application for licensure or licensure

renewal of, a licensee, certified operator,

limited certificateholder, identification

cardholder, or special identification

cardholder or any other person, or may

suspend, revoke, or deny the issuance or

renewal of any license, certificate, limited

certificate, identification card, or special

identification card that is within the scope

of this chapter, in accordance with chapter

120, upon any of the following grounds:

(a) Violation of any provision of this

chapter or of any rule of the department

adopted pursuant to this chapter.

. . . .

(7) The department, pursuant to chapter

120, in addition to or in lieu of any other

remedy provided by state or local law, may

impose an administrative fine, in an amount

not exceeding $5,000, for the violation of

any of the provisions of this chapter or of

the rules adopted pursuant to this chapter.

In determining the amount of fine to be

levied for a violation, the following factors

shall be considered:

(a) The severity of the violation,

including the probability that the death, or

serious harm to the health or safety, of any

person will result or has resulted; the

severity of the actual or potential harm; and

the extent to which the provisions of this

chapter or of the rules adopted pursuant to

this chapter were violated;

(b) Any actions taken by the licensee or

certified operator in charge, or limited

certificateholder, to correct the violation

or to remedy complaints;

(c) Any previous violations of this

chapter or of the rules adopted pursuant to

this chapter; and

(d) The cost to the department of

investigating the violation.

33. Section 482.165(8), Florida Statutes, grants the

following authority to an administrative law judge to recommend

the following alternative discipline:

(8) An administrative law judge may, in

lieu of or in addition to imposition of a

fine, recommend probation or public or

private reprimand. A public reprimand must be

made in a newspaper of general circulation in

the county of the licensee

34. In Petitioner’s Proposed Recommended Order, the Bureau

has suggested the imposition of a fine in the amount of

$4,000.00. In light of the “PRECAUTIONARY STATEMENTS HAZARDS TO

HUMANS AND DOMESTIC ANIMALS WARNING” printed on the Ditrac label,

which was ignored by Mr. Kravitsky, the requested fine is

reasonable and authorized under Section 482.165, Florida

Statutes.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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 Ditschler, 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this recommended order should be filed with the agency that

will issue the final order in these cases.