STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY J. CREWS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0954

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

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 May 18, 1994, in Palatka, Florida.

APPEARANCES

For Petitioner: Edward Jackson, Esquire

515 West Adams Street Jacksonville, Florida 32202

For Respondent: Teresa Donnelly, Esquire

1000 Northeast 16th Avenue, Building H Gainesville, Florida 32601

STATEMENT OF ISSUES

Whether the Petitioner is qualified for licensure as a septic tank system contractor.

PRELIMINARY STATEMENT

By letter dated December 9, 1993, the Department of Health and Rehabilitative Services (Department) notified the Petitioner of its decision to deny his application for septic tank contractor's registration. The Petitioner requested a hearing in a timely fashion, and the Department forwarded the case to the Division of Administrative Hearings on February 23, 1994. The case was noticed for hearing on May 18, 1994, and heard as noticed.

Subsequent to the hearing, the Respondent/Department filed proposed findings, which were read and considered. The Appendix to this Recommended Order states which of the findings were adopted, and which was rejected, and why.

FINDINGS OF FACT

1. The Petitioner applied for Septic Tank Contractor Registration on or about June 1, 1993.

2. Mr. Gerald Briggs, Environmental Health Specialist III for the Department, notified the Petitioner that his application was not complete on or about July 7, 1993, and returned the Petitioner's application to the Petitioner.

   
   

3. In November 1993, the Petitioner refiled his application with the Department.

   
   

4. By letter dated December 9, 1993, the Department notified the Petitioner of its decision to deny his application for septic tank contractor's registration because the Petitioner lacked the required three years of active experience as a worker who has learned the trade as an apprentice under a registered septic tank contractor.

   
   

5. William A. Kerce, a registered septic tank contractor in Florida, testified at the hearing. He stated that he had employed the Petitioner prior to the Petitioner's graduation from high school in 1985, and continued to employ him up until he sold the business to Donald Rose. The Petitioner's duties for installation of new septic tanks and for repairs of existing systems were to dig up an area, prepare it to install a septic tank in the ground, prepare the drainfield, and recover the tank and drainfield with soil. In addition, Mr. Kerce used the Petitioner to assist him in pumping septic tanks.

   
   

6. Mr. Kerce stated that he did not consider the Petitioner an employee, but considered him an independent contractor. Mr. Kerce would have had to pay social security and provide worker's compensation benefits if he had considered the Petitioner an employee.

   
   

7. Mr. Kerce provided all the materials and equipment used on the job. Mr. Kerce used the Petitioner's services five or six days a week for well over three years. Petitioner did not work for Mr. Kerce when Mr. Kerce did not have

   work to do, about two weeks per year. Mr. Kerce paid the Petitioner by the job,

   $200-$300 for installing a system, and $15-20 for helping him pump a system. The Petitioner worked for Mr. Kerce, except when he was working for another septic tank contractor doing the same type of work. If the Petitioner was working for another man, Mr. Kerce waited and scheduled his work until the Petitioner was available. While Mr. Kerce was not present on the job

   constantly, Mr. Kerce did supervise and approve all work done by the Petitioner. He was required by law to do so.

   
   

8. Mr. Kerce sold his business to Donald Rose in 1992. To Mr. Kerce's knowledge, Mr. Rose continued to use the Petitioner. Mr. Rose could not get qualified as a contractor with the Department. As a result, Mr. Kerce had to step back in and run the business.

   
   

9. The Petitioner assisted Mr. Rose in installing unpermitted systems. When confronted, the Petitioner assisted in the investigation of Mr. Rose, under threat of prosecution. As a result, the court withheld adjudication in the Petitioner's case and placed him on probation which he has not completed.

   
   

10. The Petitioner was employed by Rotor Rooter in Jacksonville, Florida, for six months, installing and repairing septic systems. The Petitioner has been employed by AA Septic since April 15, 1994.

    
    

11. The Petitioner took steps in June, 1993, to start a septic tank business as C&J, including listing in the Yellow Pages. However, his application was not approved. He did install a system for Eleanor Rake at about

    that time without a permit; however, he later returned Ms. Rake's money when confronted by the authorities. The Petitioner was on probation when he did the work for Ms. Rake.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

13. The Department regulates the registration of septic tank contractors, pursuant to Chapter 489, Part III, Florida Statutes. Section 489.553, Florida Statutes, specifically authorizes the Department to regulate certificates of registration and to adopt rules. The Department has adopted Rule 10D-6.072(3), Florida Administrative Code, which sets forth the criteria for registration as follows:

    
    

    1. Is 18 years of age,

    2. Is of good moral character; and

    3. Has a total of at least three years of active experience as a worker who has learned the trade by serving an apprenticeship under a registered septic tank contractor. Related work experience may be substituted on a

       year-for-year basis but shall not be substituted for more than two years of the active contracting experience.

       
       

14. The Department specifically excludes the experience of "subcontractors" because of its policy that only a registered contractor can install a septic system, and he cannot subcontract that responsibility. The Department cites its Rule 10D-6.070, Florida Administrative Code, for authority for this policy. Said Rule provides:

    
    

    1. Persons shall not hold themselves out as septic tank contractors or contract to provide septic tank services in the state unless registered by the department in accordance with the provisions of this rule.

       
       

15. Rule 10D-6.071, Florida Administrative Code, defines "Septic Tank Contractor", as follows:

    
    

    1. Septic Tank Contractor - a person responsible for a contracted project who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, install, alter, repair, modify, or maintain

    an onsite sewage disposal system. A contractor must possess the experience, knowledge, skill and ability to provide services in the septic tank trade pertaining to installation, maintenance, construction, alteration, repair, pumping or design where not prohibited by law, of any kind of onsite sewage disposal system or its components.

16. The Department's policy is not applicable for two reasons. First, the Petitioner, while working for Mr. Kerce, did not hold himself out to contract or contract to provide septic tank services. The Petitioner provided the unskilled, pick-and-shovel labor to install a septic system or to pump a septic system under the supervision, of Mr. Kerce, who was required by law to exercise complete control over the installation, and who did not deduct social security or withholding from the Petitioner's wages to his own advantage. Second, having already obtained the economic advantage of not paying social security on the Petitioner, Kerce obtains the additional windfall benefit of having the Department limit competition by refusing to recognize the employee status of the person with whom he was precluded by policy from subcontracting. The purpose of the apprenticeship program is to insure that the applicant's have the experience and skills necessary to become registered, not to enforce social security contributions. Under the social security rules, the Petitioner was an employee and Mr. Kerce was supposed to have paid social security and to have withheld taxes. Petitioner meets the experience requirement.

    
    

17. The Department raises a more serious issue of Petitioner's moral character. The Petitioner admits that he participated with Mr. Rose in installing unpermitted septic systems, was caught, charged, plead guilty, and had adjudication withheld. The Petitioner engaged in installing a system at Ms. Rake's in June 1993; but when she complained, he repaid the money which he had received from her.

    
    

18. The facts reveal that the Petitioner had taken steps at that time to become registered. It appears from the facts that the Petitioner anticipated his certification, and jumped the gun in providing services to Ms. Rake. However, it shows a pattern of treating the regulation of this activity casually. It further appears that the Petitioner is on probation for his activities with Mr. Rose. The law in Florida is that good moral character can be regained through the passage of time and good works. The termination of probation is an indication that one has successfully placed a particular activity behind them. Petitioner has not yet successfully completed his probation.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That the Department deny the Petitioner certification until he completes his probation for violations of laws directly related to installation of septic systems; and further, that upon the completion of that probation and reapplication, the Department register the Petitioner, who has established that he met the work experience requirements.

DONE and ENTERED this 27th day of June, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER CASE NO. 94-0954

The following findings were adopted or rejected for the reason stated: Respondent's

Findings Recommended Order

Paragraph 1 Paragraph 1

Paragraph 2 Paragraph 2

Paragraph 3 Paragraph 3, 4

Paragraph 4 Subsumed in paragraph 4 and

Preliminary Statement.

Paragraph 5 Subsumed in paragraphs 5 and 6

which are based upon best evidence.

Paragraph 6 Subsumed in paragraphs 8 - 11,

which are based on best evidence. Paragraph 7 Subsumed in Preliminary Statement.

COPIES FURNISHED:

Edward Jackson, Esquire

515 W. Adams Street Jacksonville, FL 32202

Teresa Donnelly, Esquire Department of Health and

Rehabilitative Services 1000 N.E. 16th Avenue Building H

Gainesville, FL 32601

Robert L. Powell, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Kimberly J. Tucker, 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

HENRY J. CREWS,

Petitioner, CASE NO.: 94-0954

RENDITION NO.: HRS-94-J4 -FOF-HST

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

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 June 7, 1994 by Hearing Officer Stephen F. Dean is incorporated by reference.

RULINGS ON EXCEPTIONS

Counsel for the department excepts to Conclusion 16 that Petitioner Henry

J. Crews demonstrated that he met the department's experience requirements for registration as a septic tank contractor. Although the requisite experience may not have appeared on the face of the application, Petitioner may prove it at hearing. Counsel does not deny that the existence of the necessary experience was proved at the hearing. The exception is denied.

The second and third exceptions are to Conclusions of law 17 and 18. The department disagrees that Mr. Crews has exhibited the requisite moral character required of a septic tank contractor. Mr. Briggs testified at the hearing that upon the satisfactory completion of a probationary period, an application can be reviewed with a view to approving same if it were proper in all respects. But here the Hearing Officer found that Petitioner, while on probation for assisting in installing unpermitted septic systems, installed a system for Eleanor Rake without a permit. I agree with counsel that installing systems without a permit shows questionable moral character. The department deserves the opportunity to make a determination whether the applicant is of good moral character.

Conclusion 18 is rejected. If appropriate, factors other than the completion of probation may be assessed by the department when Petitioner's application is reviewed at the completion of probation. Mr. Crews should be afforded an opportunity to show rehabilitation and other indicia of good moral character.

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 where inconsistent with the above Rulings on Exceptions.

Based upon the foregoing, it is

ADJUDGED, that Petitioner, Henry J. Crews, has met the experience requirements but not the good moral character requirements as he has not completed probation or shown other indicia of good moral character. The department shall allow Petitioner, Henry J. Crews, to present evidence of same when reviewing his application at the conclusion of his probation should he apply.

DONE and ORDERED this 7th day of 1994, in Tallahassee, Florida.

H. James Towey, Secretary Department of Health and Rehabilitative Services

by Paul T. Boisvert

Sate Health Officer

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.

COPIES FURNISHED:

Stephen F. Dean Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Edward Jackson, Esquire

515 West Adams Street Jacksonville, Florida 32202

Teresa Donnelly, Esquire District 3 Legal Office 1000 N. E. 16th Avenue Gainesville, Florida 32609

Laury Gauch

Environmental Health Director Putnam County Public Health Unit 2801 Kennedy Road

Palatka, Florida 32177

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy hereof has been furnished to the above- named persons by U.S. Mail this 9th day of September, 1994.

ROBERT L. POWELL, SR.

Agency Clerk

Department of Health and Rehabilitative Services Building E, Suite 200 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

FAX: (904) 922-3947

Docket for Case No: 94-000954

Orders for Case No: 94-000954