STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4238

)

HANCE B. JONES d/b/a )

JONES LANDFILL, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on August 14, 1992, in Lake Butler, Florida.

APPEARANCES

For Petitioner: David West, Esquire

District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609

For Respondent: Bobby Kirby, Esquire

Route 2, Box 219

Lake Butler, FL 32054 STATEMENT OF THE ISSUES

Whether the Respondent aided or abetted the repair of an existing on site sewage treatment system, and failed to insure that a permit was obtained for the repair of said system.

PRELIMINARY STATEMENT

The Department filed an administrative complaint against the Respondent alleging that the Respondent had aided and abetted the repair of an onsite sewage treatment system at the residence of Inez Quiett, and that the Respondent had failed to insure that a permit was obtained for the repair of said system.

The Respondent made a timely request for a formal hearing on the allegations, and the Department referred the matter to the Division of Administrative Hearings. The matter was set for hearing, and notice provided to the parties. At hearing, the Department's local inspector, Inez Quiett, and the Respondent testified. After the hearing, the parties did not indicate when their briefs would be forthcoming Proposed findings were not received within 10 days of the hearing, whereupon this recommended order was entered.

FINDINGS OF FACT

1. The Respondent, Hance B. Jones, is a registered septic tank contractor.

   
   

2. The Petitioner is charged with regulating septic tanks, and may initiate charges against septic tank contractors which fail to comply with the statutes and rules regulating septic tanks.

   
   

3. The Department's local inspector, Mr. Land, was asked by a representative of Best Septic Tank Contracting to meet with the Best representative and Ms. Inez Quiett at Ms. Quiett's home and confer about a proposed septic tank repair. On March 5, 1992, Mr. Land visited the site, observed water standing around an area which he was advised was the existing septic tank and drain field, and was asked what would have to be done.

   
   

4. Mr. Land advised that they would have to obtain a permit, and that the new drain field would have to be separated by at least 24 inches from the wet season water table, and that this would entail placing the drain field in a mound. Mr. Land left the site expecting to have a representative of Best pick up a permit for the repairs within a few days.

   
   

5. When Mr. Land did not see anyone come in about the permit, he drove by Quiett's, and observed disturbed soil in the area of the drain field. He stopped, went to the Quiett's house, and spoke with Ms. Quiett's son. The son advised that they had repaired the drain field. Mr. Land asked who had repaired the field, and the son advised him that Mr. Jones had repaired it.

   
   

6. On April 22, 1992, Mr. Land then wrote a letter to the Respondent and advised Jones that he had violated the law by repairing Quiett's septic tank and not obtaining a permit for the repair. Mr. Jones spoke with Land at Land's office, and denied that he had repaired the septic tank. Mr. Jones stated he had provided the materials and equipment used to repair the tank.

   
   

7. On April 22, 1992, Ms. Quiett called Mr. Land on the telephone, and told Land that Mr. Jones had helped her with the tank, but denied that Jones had been her contractor.

   
   

8. The Respondent denied that he was the contractor of the job; denied he was on the site; denied he supervised the work; and denied he received any compensation from Quiett. He indicated that he knew Ms. Quiett's brothers, who were contractors, and admitted that he had provided the materials used on the job and had loaned them his backhoe.

   
   

9. Ms. Quiett was asked about the repairs to the system and invoked her privilege against self-incrimination.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this case pursuant to Section 120.57, Florida Statutes.

    
    

11. The Respondent is charged with multiple violations of rules regarding the repair of septic tanks, to include aiding and abetting evasion of Chapter 489, Florida Statutes, assisting in the installation of a septic tank without a permit, improperly installing a septic system, and creating a sanitary nuisance contrary to Section 386.041(1)(b), Florida Statutes.

12. Rule 10D-6.0571, Florida Administrative Code, provides that a septic tank installation contractor is responsible for getting a permit and installing the system in accordance with the applicable provisions. However, these rules are only applicable to a registrant functioning as a contractor. A registrant functions as a contractor when he enters into a contract with another to provide his services as a contractor for compensation.

    
    

13. The Department did not show that the Respondent had a contractual agreement with Ms. Quiett to repair the system and received any compensation for the alleged repair. Therefore, of the charges made against the Respondent, only the charge of aiding and abetting unpermitted repairs would be applicable.

    
    

14. Rule 10D-6.075(2)(h), Florida Administrative Code, provides that a person included under the rule shall not aid or abet evasion of Chapter 489, Florida Statutes. The rule only addresses registered contractors. In addition to showing a contractual relationship with Ms. Quiett, the Department must show that the Respondent aided and abetted the alleged repair. "Aided and abetted" is defined by Black's Law Dictionary as, "being present at the time and place, and doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission, (State v. Tally, 102 Ala. 25,

    15 So.722) and comprehends all assistance rendered by words, acts, encouragement, support, or presence, actual or constructive, to render assistance if necessary. (Johnson v. State, 21 Ala.Alpp. 565, 110 So. 55)"

    
    

15. First, as mentioned above, the Department failed to show a contractual relationship between Quiett and Jones. The uncontroverted testimony of Jones was that he did not contract with Ms. Quiett to repair her septic system, was not present at her house, and was not compensated. If a contract did not exist, then it is questionable whether the rule applied to the Respondent. Mr. Jones indicated that he did talk to Ms. Quiett some months prior to the alleged repair about her problems. He indicated that he did make materials available to Ms. Quiett's brothers, and loan them his backhoe. His testimony is substantiated by Ms. Quiett, who reported to Mr. Land that Mr. Jones had helped her, but had not been the contractor.

    
    

16. Although the materials and equipment provided by Mr. Jones were helpful to Ms. Quiett, the items provided by Mr. Jones also would have been necessary in a repair conforming to the current requirements. Mr. Jones could not know whether Quiett or her brothers would repair the system in compliance with existing rules, to include obtaining a permit when he made these things available to them. Mr. Jones was not knowledgeable of, or responsible for, the acts of Ms. Quiett. The Respondent's conduct was not "aiding or abetting" a violation of Chapter 489, Florida Statutes.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Administrative Complaint against the Respondent be DISMISSED.

DONE AND ENTERED this 26th day of August, 1992, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992.

COPIES FURNISHED:

David West, Esquire District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609

Bobby Kirby, Esquire Route 2, Box 219

Lake Butler, FL 32054

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner, CASE NO.: 92-4238

RENDITION NO.: HRS-92-469-FOF-HST

vs.

HANCE B. JONES d/b/a JONES LANDFILL,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). The Recommended Order entered August 26, 1992, by Hearing Officer Stephen F. Dean is incorporated by reference.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for the Hearing Officer's conclusion that aiding and abetting cannot be established unless the alleged aider and abettor is contractually obligated to perform the repairs. Because the Hearing Officer found as a fact that Respondent had no knowledge of Quiett's intent to perform the repairs without the required permit, the Hearing Officer's recommended disposition is accepted.

Based upon the foregoing, it is

ADJUDGED, that the Administrative Complaint be dismissed with prejudice.

DONE and ORDERED this 5th day of October 1992, in Tallahassee, Florida.

Robert B. Williams Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Health

COPIES FURNISHED:

David A. West, Esquire District 3 Legal Office 1000 NE 16th Avenue Gainesville, Florida 32609

Bobby Kirby, Esquire Route 2 Box 219

Lake Butler, Florida 320542

Stephen F. Dean Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U. S. Mail this 9th day of October, 1992.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

(904)488-23813

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-004238

Orders for Case No: 92-004238