The proposed rules are being developed to clarify recordkeeping requirements for pest control business licensees, to clarify the type of pest control business changes that require a licensee to notify their contract holders, and to adopt more ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Agricultural Environmental Services

RULE NOS.:RULE TITLES:

5E-14.142Responsibilities and Duties - Records, Reports, Advertising, Applications

5E-14.149Enforcement and Penalties

PURPOSE AND EFFECT: The proposed rules are being developed to clarify recordkeeping requirements for pest control business licensees, to clarify the type of pest control business changes that require a licensee to notify their contract holders, and to adopt more specific language clarifying the issuance of a notice of noncompliance, specifically what constitutes a minor rule violation as defined in Section 120.695 F.S. In addition, language is being proposed to establish that a violation of Section 482.121 F.S. is a major violation. Finally, two additional types of criminal convictions are added to the list for which denial of pest control licensure is authorized.

SUMMARY: Clarification is needed in subsection 5E-14.142(1), F.A.C. regarding recordkeeping. A specific timeframe is not currently stated for the length of time that records are required to be kept at the licensed business locations. A two-year period is proposed for retention of such records and also for records relating to the application of Restricted Use Pesticides. In addition, language is stricken from subsection 5E-14.142(7), F.A.C. to clarify that licensees must notify all contract holders and the department of any change to the licensee’s business location and of any changes relating to responsibility for existing pest control contracts. Changes in subsection 5E-14.149(6), F.A.C. pertaining to the addition of Notice of Noncompliance language are in accordance with the requirements outlined in Section 120.695 F.S., which states that the department is to issue a notice of noncompliance as a first response to a minor violation of a rule. In addition, the rule changes will establish penalties for violations of Section 482.091, F.S. It is also being proposed that a violation of Section 482.121 F.S., misuse of a certified operator certificate, now be considered a major violation. Further it is proposed that subsection (5)(c) is modified to include two additional conditions upon which the department may deny licensure for criminal convictions directly related to the practice of pest control.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: There are no adverse regulatory impacts associated with implementing this rule. The proposed modifications serve to provide clarification regarding the period for which pest control records must be maintained, to specify the significant alterations to licensee business information that require notification of contract-holders, and to delineate minor, intermediate and major violations and the associated enforcement actions the department may take for such violations. These changes are intended to facilitate industry compliance and enhance consumer protections. They will impose negligible administrative costs which will not adversely affect small businesses or pest control operators. The adverse impact or potential regulatory costs of the proposed rule modifications did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statute. Additionally, no interested parties have submitted information regarding the economic impact of the proposed changes.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 482.051, 570.07(23), FS.

LAW IMPLEMENTED: 112.011, 120.695, 482.021(21), 482.032, 482.051(1),(5), 482.061, 482.071, 482.091, 482.111(5), (9), 482.121, 482.161,(1)(g),(h), 482.163, 482.226(1), (6), 482.2265, FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Sarah Oglesby, Chief, Bureau of Licensing and Enforcement, 3125 Conner Boulevard, Bldg. 8, Tallahassee, FL 32399; [phone]; [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5E-14.142 Responsibilities and Duties – Records, Reports, Advertising, Applications.

(1) Records: Pest control records of the licensee pertaining to pest control activities and including contracts shall be kept at the licensed business location or at the exact Florida address specified in the application for business license for inspection by department inspectors for a period of two years. Additionally, routine operational records containing information on product brands (names), amounts, uses, dates, and places of application of restricted-use pesticides shall be kept at the licensed business location for a period of two years. Records kept electronically must be  provided to the department upon request. Licensees operating in the category of fumigation shall record the information above along with the individual fumigant cylinder identification number utilized to fumigate a structure. Records for preventive treatment of subterranean termites in new construction shall be maintained for a period of three years pursuant to Section 482.051(5), Florida Statutes.

(2) through (6) No change.

(7) Notice of relocation, change of business address:

(7)(a) A licensee shall notify its contract holders of any change in business location within thirty (30) days after the change and a sample copy of such notice shall be furnished to the Department.

(8)(b) No change.

(8) through (11) renumbered (9) through (12) No change.

Rulemaking Authority 482.051, 570.07(23) FS. Law Implemented 482.021(21), 482.032, 482.051(1), (5), 482.061, 482.071, 482.091, 482.111(5), (9), 482.161,(1)(g), (h), 482.163, 482.226(1), (6), 482.2265 FS. History–New 1-1-77, Amended 6-27-79, 6-22-83, 1-20-87, 10-25-90, Formerly 10D-55.142, Amended 8-11-93, 5-28-98, 4-29-02, 4-17-03, 6-2-04, 6-1-06, 7-23-08, 9-17-08, 9-17-08, 1-4-09, 5-20-12, 1-9-17, 5-7-17,________.

 

5E-14.149 Enforcement and Penalties.

(1) through (2) No change.

(3) Category of Violations. Minor violations are all violations other than those classified as major violations. Major violations are violations where:

(a) Death or serious bodily harm requiring medical attention to humans or veterinary attention to animals occurs as a result of misuse of a pesticide or mismanagement of another pest control method, and the injury or death is attributable to the misuse or mismanagement.

(b) Misuse of a highly toxic pesticide (Category I, Danger signal word) as established in 40 CFR 156.64(a), is documented and such a misuse could result in death or serious bodily harm to humans or animals, but where the death or injury did not occur.

(c) The licensee, certificate holder, permit holder or applicator causes serious harm to an ecological system, or contamination of water or soil requiring corrective action or monitoring to protect human or animal health or the environment as a result of misuse of a pesticide or mismanagement of another pest control method.

(d) The licensee, certificate holder, permit holder or applicator deliberately makes false or fraudulent claims with respect to pest control, deliberately misrepresents the effects of materials or methods used in pest control, or deliberately fails to use materials or methods suitable for the pest control undertaken.

(e) The licensee, certificate holder, permit holder or applicator performs pest control in a manner that causes harm due to carelessness or failure to exercise proper care in the use of a pesticide or other pest control technique; fails to comply with subsection 5E-14.106(6), (7), or (8), F.A.C.; or uses a fumigant in a manner that is inconsistent with its label directions or the requirements of Rules 5E-14.108, .110, .111, .112, or .113, F.A.C.

(f) The licensee, certificate holder, permit holder or applicator fails to give the Department or representative true information in response to a written request within 14 business days regarding methods and materials used, work performed, or other information essential to the administration of Chapter 482, F.S.

(g) The licensee, certificate holder, permit holder or applicator performs or causes fraudulent or misleading advertising relative to pest control or advertises in an unauthorized category of pest control.

(h) The licensee, certificate holder, permit holder or applicator misuses a pesticide, performs a faulty inspection for wood destroying organisms, or fails to comply with the terms of a wood destroying organism protection contract, and such action results in property damage exceeding $2,500.

(i) The licensee, certificate holder, permit holder or applicator violates any Immediate Final Order, Emergency Suspension Order, Stop Use, Stop Work, Settlement Agreement, Consent Order, Final Order, or any other order of the Department, issued under the authority of Chapter 120 or 482, F.S., or Chapter 5E-14, F.A.C.

(j) The licensee, certificate holder, permit holder or applicator commits fraud or deceptive trade practices.

(k) An individual or business performs pest control without holding a valid license from the Department.

(l) A licensee or certified operator fails to comply with Section 482.091(1) or (2), F.S.

(4) through (5) renumbered (3) through (4) No change.

(5)(6) Denial. The Department will deny application for licensure if:

(a) through (b) No change.

(c) A person has been convicted of a crime under state or federal law that is directly related to standards determined by the Department, for which denial of licensure is necessary and reasonably related to the protection of the public health, safety, and welfare for the structural pest control business, including the following:

1. through 4. No change.

5. A felony or first degree misdemeanor under any state or federal law, which directly relates to the practice of pest control within the past three years.

6. A felony or first degree misdemeanor under any state or federal law, that is more than three years old, which directly relates to the practice of pest control and has not completed any sentence imposed by the court, unless the person has been released on probation and has complied with all the terms and conditions or probation.

(6) Notice of Noncompliance. Any department investigation or inspection which reveals minor violations of this rule chapter in which the department determines that the violator was unaware of the rule or unclear as to how to comply with it will result in the issuance of a notice of noncompliance as the department’s first response to the minor violation. The following violations shall result in the issuance of a notice of noncompliance:

(a) Failure to comply with Rule 5E-14.103, F.A.C.

(b) Failure to comply with Rule 5E-14.105, F.A.C.

(c) Failure to comply with Rule 5E-14.142, F.A.C.

(d) Failure to comply with Rule 5E-14.1421, F.A.C., as it relates to the requirement that the licensee maintain written verification of all ID cardholder’s initial and annual training.

(e) Failure to comply with Rule 5E-14.147, F.A.C.

(f) Failure to comply with Section 482.091(2)(c), F.S.

(g) Failure to comply with Section 482.226(5), F.S.

(h) Failure to comply with Section 482.227, F.S.

(i) Failure to comply with Section 482.1562, F.S.

(7) Warning Letters.  After failure to comply with a notice of noncompliance, a warning letter shall be issued for any violations classified in this rule as minor violations. A warning letter shall be issued for any first-time intermediate violation.

(8) Intermediate violations are all violations other than those classified as minor or major violations. Major violations are violations where:

(a) Death or serious bodily harm requiring medical attention to humans or veterinary attention to animals occurs as a result of misuse of a pesticide or mismanagement of another pest control method, and the injury or death is attributable to the misuse or mismanagement.

(b) Misuse of a highly toxic pesticide (Category I, Danger signal word) as established in 40 CFR 156.64(a), is documented and such a misuse could result in death or serious bodily harm to humans or animals, but where the death or injury did not occur.

(c) The licensee, certificate holder, permit holder or applicator causes serious harm to an ecological system, or contamination of water or soil requiring corrective action or monitoring to protect human or animal health or the environment as a result of misuse of a pesticide or mismanagement of another pest control method.

(d) The licensee, certificate holder, permit holder or applicator deliberately makes false or fraudulent claims with respect to pest control, deliberately misrepresents the effects of materials or methods used in pest control, or deliberately fails to use materials or methods suitable for the pest control undertaken.

(e) The licensee, certificate holder, permit holder or applicator performs pest control in a manner that causes harm due to carelessness or failure to exercise proper care in the use of a pesticide or other pest control technique; fails to comply with subsection 5E-14.106(6), (7), or (8), F.A.C.; or uses a fumigant in a manner that is inconsistent with its label directions or the requirements of Rules 5E-14.108, .110, .111, .112, or .113, F.A.C.

(f) The licensee, certificate holder, permit holder or applicator fails to give the Department or department representative true information in response to a written request within 14 business days regarding methods and materials used, work performed, or other information essential to the administration of Chapter 482, F.S.

(g) The licensee, certificate holder, permit holder or applicator performs or causes fraudulent or misleading advertising relative to pest control or advertises in an unauthorized category of pest control.

(h) The licensee, certificate holder, permit holder or applicator misuses a pesticide, performs a faulty inspection for wood destroying organisms, or fails to comply with the terms of a wood destroying organism protection contract, and such action results in property damage exceeding $2,500.

(i) The licensee, certificate holder, permit holder or applicator violates any Immediate Final Order, Emergency Suspension Order, Stop Use, Stop Work, Settlement Agreement, Consent Order, Final Order, or any other order of the Department, issued under the authority of Chapters 120 or 482, F.S., or Chapter 5E-14, F.A.C.

(j) The licensee, certificate holder, permit holder or applicator commits fraud or deceptive trade practices.

(k) An individual or business performs pest control without holding a valid license from the Department.

(l) A licensee or certified operator fails to comply with Section 482.091(1) or (2)(a), (d), and (e), F.S.

(m) A licensee or certified operator fails to comply with Section 482.121, F.S.

(7) Warning Letters. For first time, non-major violations, the Department will issue a Warning Letter that is the equivalent of a Notice of Noncompliance. These will be automatically imposed if persons fail to respond to the administrative complaint issuing the warning letter.

(9)(8) Fines. For repeat minor or intermediate non-major violations, multiple violations including at least one major violation, and all major violations, including those violators who do not respond to an administrative complaint, the Department will impose an administrative fine not to exceed $5,000 per violation plus any other penalty allowed by law including suspension or revocation. When imposing a fine, the Department will consider the degree and extent of harm, or potential harm, that was or could have been caused by the violation, the cost of rectifying the damage minus the actions taken by the licensee or certified operator or applicator to correct the violation or remedy complaints, whether the violation was committed willfully, the compliance record of the violator, and the costs to the Department of investigating the violation. The Department will use the attached Fine Guide as set out in subsection (15) to assist it in determining the appropriate amount of the fine.

(10)(9) Suspension and Revocation.

(a) Suspension will be imposed when:

1. The violation results in death of humans or domestic animals or pets, or injury requiring hospitalization to humans.

2. The violation results in serious harm to an ecological system, or contamination of water or soil requiring corrective action or monitoring to protect human health or the environment.

3. The compliance record of the violator shows two or more prior violations for similar major violations within the last three (3) years.

4. The licensee, certificate holder, permit holder or applicator has habitual intemperance or addiction to narcotics to the extent that it contributes substantially to the occurrence of violations of Chapter 482, F.S.

5. A person has obtained licensure of any kind under Chapter 482, F.S., and the Department subsequently determines that the person that is the holder of the licensure falls into any of the categories set forth in paragraph (5)(6)(c) above that would be cause for denying licensure.

6. A licensee or certificate holder has been found by the Department to be in violation of Section 482.121, F.S.

7. When a permit holder pursuant to Section 482.0815(4) or (6), F.S., meets the conditions therein.

(b) Revocation will be imposed when:

1. A violator does not comply with a suspension order, or if a licensee or certificate holder has been suspended twice in three years.

2. A person has obtained licensure of any kind under Chapter 482, F.S., and the Department subsequently determines that the person that is the holder of the licensure falls into any of the categories set forth in paragraph (5)(6)(c) above that would be grounds for denying licensure under Chapter 482, F.S., and the person will not be able to correct or cure the grounds for denying licensure within a period of two years.

(10) through (14) renumbered (11) through (15) No change.

Rulemaking Authority 482.051, 570.07(23) FS. Law Implemented 112.011, 120.695, 482.121, 482.161, 482.163 FS. History–New 7-13-06, Amended 7-11-07, 8-4-08, 5-20-12,________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Kelly Friend, Director, Division of Agricultural Environmental Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 16, 2018

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 17, 2018