Section 487.071, Florida Statutes 2003
487.071 Enforcement, inspection, sampling, and analysis.--
(1) The department is authorized to enter upon any public or private premises or carrier where pesticides are known or thought to be distributed, sold, offered for sale, held, stored, or applied, during regular business hours in the performance of its duties relating to pesticides and records pertaining to pesticides. No person shall deny or refuse access to the department when it seeks to enter upon any public or private premises or carrier during business hours in performance of its duties under this chapter.
(2) The department is authorized and directed to sample, test, inspect, and make analyses of pesticides sold, offered for sale, distributed, or used within this state, at a time and place and to such an extent as it may deem necessary, to determine whether the pesticides or persons exercising control over the pesticides are in compliance with the provisions of this chapter, the rules adopted under this chapter, and the provisions of the pesticide label or labeling.
(3) The official analysis shall be made from the official sample. A sealed and identified sample, herein called "official check sample" shall be kept until the analysis on the official sample is completed. However, the registrant may obtain upon request a portion of the official sample. Upon completion of the analysis of the official sample, a true copy of the certificate of analysis shall be mailed to the registrant of the pesticide from whom the official sample was taken and also to the dealer or agent, if any, and consumer, if known. If the official analysis conforms with the provisions of this chapter, the official check sample may be destroyed. If the official analysis does not conform with the provisions of this chapter, the rules adopted under this chapter, and the provisions of the pesticide label or labeling, the official check sample shall be retained for a period of 90 days from the date of the certificate of analysis of the official sample. If within that time the registrant of the pesticide from whom the official sample was taken makes demand for analysis by a referee chemist, a portion of the official check sample sufficient for analysis shall be sent to a referee chemist who is mutually acceptable to the department and the registrant for analysis at the expense of the registrant. Upon completion of the analysis, the referee chemist shall forward to the department and to the registrant a certificate of analysis bearing a proper identification mark or number; and such certificate of analysis shall be verified by an affidavit of the person or laboratory making the analysis. If the certificate of analysis checks within 3 percent of the department's analysis on each active ingredient for which analysis was made, the mean average of the two analyses shall be accepted as final and binding on all concerned. However, if the referee's certificate of analysis shows a variation of greater than 3 percent from the department's analysis in any one or more of the active ingredients for which an
analysis was made, upon demand of either the department or the registrant from whom the official sample was taken, a portion of the official check sample sufficient for analysis shall be submitted to a second referee chemist who is mutually acceptable to the department and the registrant, at the expense of the party or parties requesting the referee analysis. Upon completion of the analysis, the second referee chemist shall make a certificate and report as provided in this subsection for the first referee chemist. The mean average of the two analyses nearest in conformity shall be accepted as final and binding on all concerned. If no demand is made for an analysis by a second referee chemist, the department's certificate of analysis shall be accepted as final and binding on all concerned.
(4) If a pesticide or device fails to comply with the provisions of this chapter with reference to the ingredient statement reflecting the composition of the product, as required on the registration and labeling, and the department contemplates possible criminal proceedings against the person responsible because of this violation, the department shall, after due notice, accord the person an informal hearing or an opportunity to present evidence and opinions, either orally or in writing, with regard to such contemplated proceedings. If in the opinion of the department the facts warrant, the department may refer the facts to the state attorney for the county in which the violation occurred, with a copy of the results of the analysis or the examination of such article; provided that nothing in this chapter shall be construed as requiring the department to report for prosecution minor violations whenever it believes that the public interest will be subserved by a suitable notice of warning in writing.
(5) It shall be the duty of each state attorney to whom any such violation is reported to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay.
(6) The department shall, by publication in such manner as it may prescribe, give notice of all judgments entered in actions instituted under the authority of this chapter.
(7)(a) The department may analyze pesticide samples upon request in a manner consistent with this chapter.
(b) The department shall establish by rule a fee schedule for pesticide samples analyzed upon request. The fees shall be sufficient to cover the costs to the department for taking the samples and performing the analysis. However, no fee shall exceed $400 per test.
(c) The department shall keep separate records with respect to requested pesticide analyses, including the pesticide analyzed, tests performed, fees collected, the name and address of the person who requested the analysis, and the name and address of the registrant.
(d) All fees collected pursuant to this subsection shall be deposited into the General Inspection Trust Fund and shall be used by the department to implement this subsection.
(e) In addition to any other penalty provided by this chapter, the registrant of any pesticide found to be adulterated, misbranded, or otherwise deficient shall reimburse the person requesting the pesticide analysis under this subsection for all fees assessed by and paid to the department.
History.--s. 1, ch. 65-457; ss. 14, 35, ch. 69-106; s. 26, ch. 73-334; s. 5, ch. 79-210; s. 3, ch. 82-106; s. 19, ch. 84-338; ss. 19, 37, ch. 92-115; s. 15, ch. 94-233; s. 22, ch. 2000-154.