STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY D. THOMPSON, )

)

Petitioner, )

)

vs. ) Case No. 96-4684

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Daytona, Florida, on October 7, 1997, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

The parties were represented as follows: Petitioner: Jerry D. Thompson, pro se

500 Walker Street

Holly Hill, Florida 32117

Respondent: Charlene J. Petersen, Esquire

Volusia County Health Department

420 Fentress Boulevard Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue in this case is whether the Department should grant and approve Petitioner’s application as a septic tank contractor.

PRELIMINARY STATEMENT

On July 6, 1996, the Petitioner applied to the Department of Health to become a registered septic tank contractor. The

Department denied Petitioner’s application because his previous registration had been revoked within the last five (5) years, the Petitioner had been convicted of a crime related to septic tank contracting, and the corporation in which he was an officer, Rayco Properties, Inc., d/b/a Woody’s Septic Tank Service, had been sanctioned administratively.

The Petitioner requested an administrative hearing on the Department’s denial.

Upon receipt of the Division of Administrative Hearings, the case was assigned to Administrative Law Judge Ella Jane P. Davis, who set the matter for hearing. Thereafter, the Petitioner moved to recuse Judge Davis. Judge Davis entered an Order of Recusal and Transfer, and the matter was transferred to the undersigned on November 14, 1996. The undersigned rescheduled the hearing from January 31, 1997, until March 5, 1997, at the request of the parties.

On or about March 31, 1997, a telephone conference was held to consider a Motion to Quash a Subpoena served on Amy Jones by the Petitioner. During the conference it was learned that Petitioner sought to subpoena Ms. Jones to elicit her testimony about the rule under which his application was denied. It was held that this line of inquiry was irrelevant in a proceeding regarding denial of Petitioner’s license application. Having learned of his inability to challenge the rule indirectly, Petitioner asked that the scheduled formal hearing be abated to

permit him to file a formal rule challenge proceeding. The Respondent’s counsel, Ms. Peterson, had no objection. Therefore this cause was abated to permit the Petitioner to proceed with a rule challenge.

On July 21, 1996, an Order to Show Cause was entered which resulted in the Order rescheduling the hearing dated September 5, 1997, for a formal hearing on October 7, 1997. This hearing was conducted as scheduled.

At the formal hearing, the Petitioner presented no documentary evidence or exhibits. Petitioner testified in his own behalf. In addition, the Petitioner called Chuck Luther and Gerald Briggs to testify in his case. The Respondent presented the testimony of Ed Barranco and introduced three (3) exhibits into evidence. The Respondent requested that official notice of the Final Order in DOAH Case No. 97-1097RX, and Rule 10D-6.072, Florida Administrative Code, be taken. Notice was given, on the record, of the undersigned’s intent to take notice of the Order and rule. Following the hearing, the agency filed proposed findings which were read and considered.

FINDINGS OF FACT

1. The Department of Health is the agency responsible for the registration of septic tank contractors and the authorization of septic tank companies. The Department of Health enforces the statutes and rules pertaining to the registration and authorization of septic tank contractors and septic tank

   companies pursuant to Chapters 381 and 489, Part 3, Florida Statutes, and Rule 10D-6, Florida Administrative Code.

2. The Petitioner, Gerald D. Thompson, applied to the Department of Health to be a registered septic tank contractor. The Department received his application on July 3, 1996.

3. The Petitioner’s application indicates that he had been convicted of a crime related to septic tank contracting and had had an enforcement action taken against him. The attachment to the application reflected that both events had occurred to the Petitioner.

4. The Petitioner had been adjudged guilty, in Flagler County Circuit Court, on January 18, 1997, of the attempted felony littering by disposing of domestic sewage on private property in an area not permitted for such use.

5. Petitioner’s previous septic tank contracting registration had been revoked for two (2) years in a settlement agreement between the Petitioner and the Department of Health and Rehabilitative Services. The revocation was effective June 1, 1994.

6. The Settlement Agreement stipulated that the Petitioner could reapply for registration as a septic tank contractor upon the expiration of the two (2) years stipulated in the agreement under the rules in effect at the time of the new application. The Settlement Agreement was signed by Petitioner and by Petitioner’s counsel.

7. On September 6, 1996, the Petitioner issued its denial of the Petitioner’s instant application on the grounds that he failed to meet the qualifications listed in Rule 10D- 6.072(3)(d)(e)(f), Florida Administrative Code.

   
   

8. It is uncontroverted that the Petitioner had his prior registration as a septic tank contractor revoked and that he was adjusted guilty of attempted felony littering in a case-related septic tank contracting.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. This Order is entered pursuant to Section 120.57(1), Florida Statutes.

10. The Petitioner applied for registration as a septic tank contractor. The Respondent denied Petitioner’s application on the basis that his previous registration had been revoked within the last five (5) years, that he had been convicted of a crime related to septic tank contracting, and that the corporation in which he was an officer, Rayco Properties, Inc., d/b/a Woody’s Septic Tank Service, had been sanctioned in an administrative proceeding. The basis for the Respondent’s action were Rules 10D-6.072(3)(d)(e)(f), Florida Administrative Code.

11. Rule 10D-6.072(3)(d), Florida Administrative Code, provides that an applicant is not qualified to take the

    registration exam to become a licensed septic tank contractor if a previous registration issued to the applicant by the Respondent has been revoked within the last five (5) years.

12. Rule 10D-6.072(3)(e), Florida Administrative Code, provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has a disciplinary case pending involving septic tank contracting.

13. Rule 10D-6.072(3)(f), Florida Administrative Code, provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if the applicant has been convicted of a crime in any jurisdiction which is directly related to the practice of septic tank contracting.

14. Prior to the instant hearing, the Petitioner challenged Rules 10D-6.072(3)(d)(e)(f), Florida Administrative Code, on the basis that they were an invalid exercise of delegated legislative authority. The rules were determined to be valid in an administrative hearing under Section 120.52, Florida Statutes, a Final Order in Case Number 97-1097RX.

15. The argument of Petitioner in favor of approval of his application is that he is entitled to apply pursuant to the stipulated agreement in the disciplinary case against him at the conclusion of the two (2) year period of his revocation.

    However, the stipulation provides that his subsequent application

    will be determined under the rules in effect at the time of the new application. Those rules require that the applicant be of good moral character, that the applicant not have had a registration issued by the Department revoked within the last five (5) years, and that the applicant not have been convicted of a crime in any jurisdiction directly related to the practice of contracting.

16. That facts in this case reveal that the Petitioner was convicted of attempted felony littering, and had his registration revoked. Both of these events are disqualifying under the rules in effect at the time of his application. In addition, conviction of a felony raises an issue of good character which is an additional qualification for a licensure.

17. For reasons detailed in the case of Gregory B. Thompson vs. Department of Health, DOAH Case Number 97-2851, the Petitioner is not disqualified as a result of being an officer of Rayco Properties, Inc., d/b/a Woody’s Septic Tank Service, when the aforementioned corporation was involved in an disciplinary action.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Petitioner’s application for registration as a septic tank contractor be denied because he was convicted of a

crime involving contracting and his license had been revoked within five (5) years prior to his application.

DONE AND ENTERED this 17th day of November, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Jerry D. Thompson

500 Walker Street

Holly Hill, Florida 32117

Charlene Petersen, Esquire Chief Legal Counsel Department of Health

420 Fentress Boulevard Daytona Beach, Florida 32114

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1997.

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health

1317 Winewood Boulevard

Building 6, Room 306

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102E

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004684

Orders for Case No: 96-004684