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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY KRAVITSKY, )

)

Petitioner, )

)

vs. )

) Case No. 09-2300PL

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

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

Judge of the Division of Administrative Hearings, on a

stipulated record.

APPEARANCES

For Petitioner: Larry Kravitsky, pro se

3300 South Ocean Boulevard

Apartment 917

Highland Beach, Florida 33487

For Respondent: 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

STATEMENT OF THE ISSUE

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

control employee-identification card filed by Respondent, Larry

Kravitsky, with Petitioner, the Department of Agriculture and

Consumer Services, should be denied for the reasons stated in

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

PRELIMINARY STATEMENT

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

Agriculture and Consumer Services, Bureau of Entomology and Pest

Control, issued Administrative Complaint # A61227, BEPC Case #

09-0850, RE: Amended Notice of Denial of Application for Pest

Control Employee-Identification Card for Larry Kravitsky

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

denied because of alleged wrongdoing which was the subject of an

Administrative Complaint and Settlement Agreement, Notice to

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

Complaint Number A47018. The latter Administrative Complaint

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

to the undersigned.

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

upon which the Administrative Complaint in this case is based

and requested a formal administrative hearing pursuant to

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

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

Division of Administrative Hearings requesting that an

administrative law judge be assigned to conduct the formal

hearing requested by Respondent. The matter was designated DOAH

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

In response to an Initial Order entered in this case,

Respondent filed Respondent’s Response to Initial Order and

Motion to Consolidate. In this pleading, Respondent requested

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

Respondent pointed out in its Motion that the denial of

Petitioner’s application for the issuance of a pest control

employee-identification card in this case is predicated on the

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

the two cases should be consolidated. Petitioner filed

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

motion hearing was conducted by telephone to resolve the issue.

During the motion hearing, both parties agreed that the

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

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

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

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

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

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

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

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

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

file proposed recommended orders and/or written argument in this

case. These decisions were memorialized in two Orders entered

June 5, 2009.

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

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

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

not filed a proposed order or written argument.

All further references to the Florida Statutes in this

Recommended Order are to the 2008 edition, unless otherwise

noted.

FINDINGS OF FACT

1. Respondent, the Florida Department of Agriculture and

Consumer Services, Bureau of Entomology and Pest Control

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

the responsibility of administering and enforcing the provisions

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

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

issuing pest control employee-identification cards.

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

Administrative Complaint and Settlement Agreement, Notice to

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

Complaint Number A47018, against Larry Kravitsky (hereinafter

referred to as the “Disciplinary Administrative Complaint”).

3. It is alleged in Count 1 of the Disciplinary

Administrative Complaint that Mr. Kravitsky 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

Mr. Kravitsky violated Florida Administrative Code Rule 5E-

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

with its labeling . . . .”

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

the facts upon which the Disciplinary 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 the Department with

the Division of Administrative Hearings requesting that an

administrative law judge be assigned to conduct the formal

hearing requested by Mr. Kravitsky. The matter was designated

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

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

5600PL on December 18, 2008.

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

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

Law, and recommendation in that case are hereby incorporated by

reference into this Recommended Order. In the Recommended Order

Mr. Kravitsky was found to have violated Section 482.165,

Florida Statutes, and Florida Administrative Code Rule 5E-

14.106(6), as alleged in the Disciplinary Administrative

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

Department in the disciplinary Administrative Complaint case.

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

Recommended Order were adopted “in their entirety” and

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

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

of Disciplinary Administrative Complaint and prior to the entry

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

Mr. Kravitsky applied with the Department for a pest control

employee-identification card.

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

0850, the Department notified Mr. Kravitsky that his January 6,

2009, application for a pest control employee-identification

card was being denied based upon the following:

1) A copy of an Administrative Complaint

and Settlement Agreement against Larry

Kravitsky dated February 13, 2007,

Administrative Complaint Number A47018, BEPC

Case Number 06-1951 is attached hereto as

Exhibit A. The factual allegations against

Mr. Kravitsky in Exhibit A are incorporated

by reference herein.

2) Based on the factual allegations in

Exhibit A, Larry Kravitsky practiced pest

control on or about June 5, 2006, in the

State of Florida without a pest control

business license and without an

identification card in violation of Section

482.165(1), Florida Statutes.

3) Based on the factual allegations in

Exhibit A, Larry Kravitsky applied a

pesticide on or about June 5, 2006, in a

manner inconsistent with its labeling in

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

Administrative Code.

4) The Department is authorized by Florida

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

application for licensure of an

identification cardholder for the violation

of any provision of Chapter 482, Florida

Statutes or of any rule adopted by the

Department pursuant to Chapter 482, Florida

Statutes.

5) The alleged violations against Larry

Kravitsky set forth in Exhibit A were tried

in an administrative hearing on December 8,

2008, before Honorable Larry Sartin

Administrative Law Judge in Division of

Administrative Hearings (DOAH) Case Number

07-5600. A Recommended Order has not yet

been issued in that case.

9. Mr. Kravitsky disputed the foregoing allegations and

requested a formal administrative hearing. His request was

filed with the Division of Administrative Hearings and designed

DOAH Case No. 09-2300.

CONCLUSIONS OF LAW

A. Jurisdiction .

10. 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 (2009).

B. The Burden and Standard of Proof .

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

employee identification card, has the ultimate burden of proving

his entitlement thereto by the preponderance of the 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). The Department, however, has the burden of

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

application is factually sound. The Department met its burden,

while Mr. Kravitsky did not.

D. Mr. Kravitsky’s Application .

12. Section 482.161, Florida Statutes, provides the

Department’s authority with regard to the issuance of pest

control employee-identification cards. In pertinent part, the

Department is granted the following authority:

(1) The department may . . . 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 . . . 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.

. . . .

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

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

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

14.106(1), a Department rule adopted pursuant to Chapter 482,

Florida Statutes.

14. Although the Department has issued an “Administrative

Complaint” in this case which suggests that the Department is

seeking to take disciplinary action against Mr. Kravitsky for the

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

Department is exercising its regulatory authority over the

issuance of pest control licenses.

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 denying the application for

a pest control employee-identification card filed by Larry

Kravitsky due to his violation of Section 482.165, Florida

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

alleged in the Disciplinary Administrative Complaint and found

in DOAH Case No. 07-5600PL.

DONE AND ENTERED this 10th day of August, 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 10th day of August, 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.