(1) List of
Penalties. The Department will apply one or more of the following penalties for
violation of Chapter 482, F.S., or Chapter 5E-14, F.A.C., or as provided in
Section
482.161, F.S.
(a) Denial of an application for licensure or
license renewal and/or permits or refusal of a pest control registration,
license, and/ or permit.
(b)
Revocation or Suspension of any license including permits.
(c) Warning Letter.
(d) Probation for a specified period of time
not to exceed two years subject to conditions.
(e) Administrative fine not to exceed $5, 000
for each violation.
(f) Criminal
prosecution by referral to the State Attorney under Sections
775.082 and
775.083, F.S.
(g) Injunctive relief.
(h) Issuance of a Cease and Desist Order,
Immediate Stop Use or Stop Work Orders.
(i) Institution of an action under Chapter
501, Part II, Sections 501.204, .207, .2075, .2077, .209, .211, .2105, .212,
and .213, F.S., for violations involving deceptive and unfair trade practices
where the legal remedies provided under Chapter 501, Part II, F.S., are needed
to further protect consumers or recover damages associated with identified
violations.
(2) Violation
and Repeat Violation. Each and every breach of Chapter 482, F.S., and related
rules, or part thereof, is a violation. A repeat violation is a violation for
which the person has been previously disciplined within the last three (3)
years.
(3) Stop Use or Stop Work
Orders.
(a) Use of Stop Use, Stop Work Orders
shall be issued in accordance with subsection
5E-14.108(4),
F.A.C., for:
Fumigation activities performed in violation of fumigant
label requirements or department rules, or in a manner that presents an
immediate serious danger to the health, safety, or welfare of the public,
including but not limited to, failure to use required personal protective
equipment, failure to use required warning agent, failure to post required
warning signs, failure to secure a structure's usual entrances as required, or
using a fumigant in a manner that will likely result in hazardous exposure to
humans, animals, or the environment.
(b) The Department shall issue a release of a
Stop Use or Stop Work Order when the deficiencies cited have been corrected and
the violator is in compliance with the provisions of Chapter 482, F.S., and
associated rules.
(4)
Default. A violator's failure to respond to an administrative complaint may
result in a waiver of rights to a hearing and the Department may enter a Final
Order imposing up to the maximum penalties as authorized by Florida law,
including suspension of the violator's license and/or permit.
(5) Denial. The Department will deny
application for licensure if:
(a) A person
fails to comply with the licensing and/or permit requirements of Chapter 482,
F.S., or Chapter 5E-14, F.A.C., or
(b) All outstanding fines owed to the
Department are not paid in full unless the person seeking licensure has entered
into a written settlement agreement with the Department to pay the fine, which
has been filed with the agency clerk, and the person has made the payments
timely as provided in the settlement agreement, or
(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, including
the following:
1. A felony or first degree
misdemeanor conviction under any state or federal law involving dishonesty,
violence, destruction of property, sexual misconduct or which directly relates
to the practice of pest control within the past three years.
2. A felony or first degree misdemeanor
conviction under any state or federal law, which is more than three (3) years
old, involving dishonesty, violence, destruction of property, sexual
misconduct, or which directly relates to the practice of pest control, where
the applicant has not completed any term of probation or parole and the
conditions thereof.
3. A felony or
first-degree misdemeanor conviction of any offense that serves as a predicate
to registration as a sexual offender in accordance with Section 943.0435 or
491.0112, 784.049(3)(b), 794.08, 796.08, 800.101, 826.04, 847.012, 872.06(2),
944.35(3)(b)2., 951.221(1),
F.S. or similar laws of any other state.
4. A felony or first-degree misdemeanor
conviction under Section
775.33(4),
782.04(1), (2),
(3), or
782.09, F.S., which resulted in
the actual killing of a human being, or similar laws of any other
state.
5. A felony or first degree
misdemeanor conviction at any time under any state or federal law and the
person has been classified as a sexual predator pursuant to Section
775.21, F.S. or similar laws of
any other state
(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.
(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 Rule
5E-14.108,
5E-14.110,
5E-14.111,
5E-14.112, or
5E-14.113, 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 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)(a), (d), and
(e), F.S.
(m) A licensee or certified operator fails to
comply with Section 482.121,
F.S.
(9) Fines. For
repeat minor or intermediate 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
Fine Guide as set out in subsection (15) to assist in determining the
appropriate amount of the fine.
(10) 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 licensee or
certificate holder has been found by the Department to be in violation of
Section 482.121, F.S.
6. 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)(c),
above, that would be grounds for denying licensure under Chapter 482,
F.S.
(11)
Quarterly List. All disciplinary actions taken by the Department pursuant to
Chapter 482, F.S., or the rules adopted pursuant to it, shall be published in
the next available quarterly list published as required in Section
482.161(9),
F.S., and on the Department's website and shall include the identity of each
individual or entity against which disciplinary action was taken, and a brief
description of the offense and the disciplinary action, whether it was a
warning letter, fine, probation, suspension or revocation. If the violator
operated an unlicensed pest control business the name of the unlicensed
business will also be listed.
(12)
Resolution of Violations, Settlement, and Additional Enforcement Remedies. The
Department and the violator may agree to resolve violations prior to
administrative action, or to enter into settlement pursuant to Section
120.57(4), F.S.
The willingness of a violator to resolve violations prior to initiation of
administrative action, or to settle will be considered in determining the
appropriate penalty because early resolution of violations furthers compliance
and results in savings of time, costs, and expenses for the Department. The
Department will enforce a failure to comply with an agreement to resolve
violations or a settlement agreement with the penalties and remedies provided
in the agreement as authorized by law. These enforcement guidelines shall not
be construed to limit the authority of the Department to resolve violations
prior to or after initiation of any administrative action or to settle with any
party. The Department may utilize all available remedies to ensure voluntary
compliance including administrative action, civil actions, referrals for
criminal prosecution, and deceptive and unfair trade practices actions pursuant
to Chapter 501, F.S.
(13) Follow-Up
Compliance Inspections. If the violator agrees to corrective actions and
subsequent inspection reveals that corrective actions have not been taken or
that good faith efforts to undertake these corrective actions have not been
made, then the Department will enforce the penalties and remedies provided in
the agreement and as authorized by law.
(14) Notification of Licensees, Certificate
Holders, and Identification Card Holders of Complaint. When the Department
receives a written complaint from a consumer regarding a licensee, certificate
holder, permit holder or applicator, the Department will send a notice to the
responsible person and to the licensee, stating the complaint, identifying the
complainant and requesting a written response within 10 working days.
(15) Fine Guide. FINE GUIDE = A(B+C+D+E+F)G.
This guide shall apply for each violation for which a fine is imposed. The
maximum fine is $5, 000 per violation. The terms and values used in the fine
guide calculation shall be:
A = Degree & Extent of Harm - Human, animal and
environmental hazards occur as a result of pesticide misuse or mismanagement of
another pest control method:
1 Human, animal or environmental harm not identified
5 Death of animals or injury to humans or animals requiring
hospitalization, or serious harm to an ecological system, or contamination of
water or soil requiring corrective action or monitoring to protect human health
or the environment
7 Human death
B = Toxicity of the pesticide for which a pesticide misuse
or violation, of label directions which could result in human or animal
hazards:
0 No pesticide involved in complaint
1 Category III or IV - Signal Word "Caution"
2 Category II - Signal Word "Warning"
3 Category I - Signal Word "Danger"
C = Estimated cost of rectifying the damage to consumer
minus any mitigation provided by the violator
1 Unknown or under $1, 000
2 Over $1, 000 and under $5, 000
3 Over $5, 000 and under $10, 000
4 Over $10, 000
D = Whether the violation was committed deliberately
1 No evidence violation was committed deliberately
5 Evidence violation was committed deliberately
E = Compliance record of the violator
0 No prior violations
1 One prior violation for a dissimilar violation
2 Two or more prior violations dissimilar to current
violation
3 One prior violation for a similar violation
4 Two or more prior violations for similar
violations
F = Investigative Costs
0 Routine investigation or Payment of all investigative
costs
2 Violation documented as a result of more than one
inspection or requiring investigation by multiple inspectors, or by department
personnel outside of the division of Agricultural Environmental Services
G = Entity Category
500 Business licensee responsible for violation, or person
operating a pest control business without a valid business license
250 Certified Operator or Special Identification Cardholder
responsible for violation
100 All others
Compliance record. The compliance record is established by
prior disciplined violations, within the three (3) years preceding the date of
the current violation, of Chapter 482, F.S., or of Chapter 5E-14, F.A.C., or of
federal or other Florida law addressing pest control or pesticide use or
disposal. Violations will be considered final on acceptance of the applicable
penalty, or the date of final agency action or the conclusion of any appeals
thereof.
