STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY D. THOMPSON, )

)

Petitioner, )

)

vs. ) CASE NO. 97-1097RX

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

FINAL ORDER

A Final Hearing was held before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, in Tallahassee, Florida, on April 14, 1997.

APPEARANCES

For Petitioner: Jerry D. Thompson

500 Walker Street

Holly Hill, Florida 32117

For Respondent: Charlene Petersen, Esquire

Chief Legal Counsel Department of Health

420 Fentress Boulevard Daytona Beach, Florida 32114

Tricia Matthews, Esquire Department of Health 1317 Winewood Boulevard

Building 6, Room 102

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUE

Whether Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code, are an invalid exercise of delegated legislative authority on the ground that these three rules

enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996).

PRELIMINARY STATEMENT

On March 7, 1997, Petitioner Jerry D. Thompson (hereinafter referred to as “Petitioner”) initiated these proceedings by filing a request for a he7aring with the Division of Administrative Hearings. Discovery ensued and the parties entered into a prehearing stipulation on April 11, 1997, as required by the Initial Prehearing Order.

At the hearing, the parties stipulated to certain facts, as contained in the Prehearing Stipulation, which required no additional proof at the hearing. Petitioner called no witnesses and offered two exhibits into evidence: an excerpt from CS/SB

552 (1997) and a February 17, 1997 Joint Administrative Procedures Committee (JAPC) Agenda. Respondent, Department of Health (hereinafter referred to as “Respondent”) raised relevancy objections to both exhibits. The Administrative Law Judge reserved ruling on these objections and now sustains the objections. The Department called one witness, Gerald Briggs, an Environmental Administrator with Respondent’s Onsite Sewage Program, and offered two exhibits into evidence: the transcript of the deposition testimony of Joan Ellen Vause, a registered master septic tank contractor and a past president of the Florida Septic Tank Association, and a February 17, 1997 letter from the

Executive Director of JAPC to Dr. James Howell. Petitioner objected to admission of the transcript on grounds of relevancy. The Judge reserved ruling on Petitioner’s objection and now overrules the objection.

Upon request by Petitioner, the Administrative Law Judge took Official Recognition of the following items: page 17 of Chapter 96-303, Laws of Florida; Vol. 20, No. 5, Florida Administrative Weekly, February 4, 1994; Chapter 10D-6, Florida Administrative Code; Chapter 489, Florida Statutes; and sections 120.52, 120.54, Florida Statutes. Upon request by the Respondent, the Judge took official recognition of the following items: sections 154.01, 154.06, 381.001, 381.0011, 381.0012,

381.0025, 381.006, 381.0061, 381.0065, 381.00655, 381.0066,

381.0067, Part I of Chapter 386, and Part III of Chapter 489, Florida Statutes.

The transcript was ordered and was filed with the Division of Administrative Hearings on April 21, 1997. The Petitioner has not filed a proposed final order as of the date of this order.

Respondent filed its proposed final order on April 23, 1997.

FINDINGS OF FACT

1. Petitioner applied for septic tank contractor registration in July 1996.

2. On September 6, 1996, the Respondent issued its intent to deny his application on the grounds that he failed to meet the required qualifications listed in Rules 10D-6.072(3)(d), (e), and

   (f), Florida Administrative Code.

   
   

3. Rule 10D-6.072(3)(d) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if a previous registration issued by the Respondent has been revoked within the last 5 years.

4. Rule 10D-6.072(3)(e) 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 with the Respondent involving septic tank contracting.

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

6. Petitioner filed a request for a hearing, in which he alleged Rules 10D-6.072(3)(d), (e), and (f) constitute an invalid exercise of delegated legislative authority in that these rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996).

7. Rules 10D-6.072(3)(d), (e), and (f) formally took effect on January 3, 1995.

8. There is no material failure to comply with the procedural requirements of Chapter 120, Florida Statutes, in the promulgation of these rules.

9. Sections 154.06, 381.0011, 381.006, 381.0065, 489.553,

and 489.557, Florida Statutes, grant the Respondent specific authority to adopt rules implementing the statutes. Petitioner does not dispute the Respondent’s rulemaking authority.

1. Rules 10D-6.072(3)(d), (e), and (f) implement sections 154.01, 381.001, 381.0011, 381.0012, 381.0025, 381.006, 381.0061, 381.0065, 381.00655, 381.0066, 381.0067, Part I of Chapter 386, and Part III of Chapter 489, Florida Statutes.

2. Part III of Chapter 489, Florida Statutes (Supp. 1996), is the chapter governing septic tank contractor registration.

3. Chapter 10D-6, Florida Administrative Code, are the rules pertaining to Standards for Onsite Sewage Treatment and Disposal Systems, which include septic tank systems.

4. A person who becomes a registered septic tank contractor has the authority to install, maintain, repair, and perform site evaluations for repairs of onsite sewage treatment and disposal systems.

5. There are an estimated 1.4 million septic systems in use in Florida.

6. The onsite sewage treatment program impacts public health in that it prevents and corrects sanitary nuisances; prevents pollution to groundwater, which is the primary drinking water source in the state; prevents pollution to surface water; and eliminates risks to public health from exposure to improperly treated human waste. Untreated or improperly treated human waste

   contains many significant disease-causing organisms injurious to human health.

7. A “sanitary nuisance” is the “commission of any act, .

   
   

   . . or the keeping, maintaining, propagation, existence, or permission of anything, . . . by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.” Section 386.01, Florida Statutes (1995). “Improperly built or maintained septic tanks” and “untreated or improperly treated human waste” constitute “prima facie evidence of maintaining a nuisance injurious to health.” Section 386.041(1), Florida Statutes (1995).

8. The training, regulation, and registration of septic tank contractors, who install and repair such systems, is directly related to public health. An improperly installed or repaired system may result in untreated human waste or raw sewage either surfacing on the ground, backing up in the owner’s house/business, contaminating groundwater, and contaminating nearby surface water.

9. The Respondent regularly receives complaints from citizens detailing installation problems, including complaints regarding improper workmanship, the premature failure of their septic tank system resulting in sewage on the ground around their house, and the contractor’s failure to honor his/her warranty.

10. The impetus behind regulating contractors came

    primarily from the industry itself (i.e., the Florida Septic Tank Association).

11. The qualification outlined in Rule 10D-6.072(3)(d), which provides that an applicant is not qualified to become a registered septic tank contractor if the Respondent has revoked his prior septic tank registration within the last 5 years, protects the public from sanitary nuisances caused by the improper installation and repair of septic tank systems. This qualification is, moreover, an indicator of an applicant’s “good moral character.”

12. The qualification outlined in Rule 10D-6.072(3)(e), which provides that an applicant is not qualified to become a registered septic tank contractor if the applicant has a disciplinary case pending with the Respondent involving septic tank contracting, fits into what the septic tank contracting program under chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who have demonstrated they are not complying with the rules or statutes.

13. The qualification outlined in Rule 10D-6.072(3)(f), which provides that an applicant is not qualified to become a registered septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting, fits into what the septic tank contracting program under Chapter 489 and Chapter 10D-6 is

    designed to accomplish. This qualification protects the public by denying licenses to those persons who are not law abiding and do not follow the standards.

14. “Good moral character” is not defined in Chapter 489, Florida Statutes. Each of the three qualifications established by Rules 10D-6.072(3)(d), (e), and (f) make specific or interpret an individual’s good moral character.

15. The Department’s statutory authority for Rule 10D- 6.072(3)(d), Rule 10D-6.072(3)(e), and Rule 10D-6.072(3)(f) comes from: (a) section 489.553(2), which requires the Department to “provide qualifications for applicants;” (b) section 489.553(4)(a), which says the applicant “must be of good moral character’” (c) section 489.558(2), which says the Department may deny registration if it determines the applicant “has violated any provision of this part [Part III of Chapter 489];” and (d) section 489.556, which authorizes the Department to suspend and revoke licenses.

16. The Joint Administrative Procedures Committee (JAPC) has neither filed an objection nor voted on an objection to the three rules at issue in this case. Although a staff member of JAPC, in response to Petitioner’s complaint, recently made a preliminary inquiry into the validity of these rules, the committee did not adopt the staff member’s recommendation.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has

    jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

18. Sections 120.56(1) and (3), Florida Statutes (Supp. 1996), authorize any person substantially affected by an existing rule to challenge the rule as an “invalid exercise of delegated legislative authority.” The parties have stipulated that Petitioner is substantially affected by Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code.

19. Section 120.52(8), Florida Statutes (Supp. 1996), provides in pertinent part:

    “Invalid exercise of delegated legislative authority” means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:

    . . .

    (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;

    . . .

    A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have the authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.

    See also section 120.536(1), Florida Statutes (Supp. 1996).

20. Petitioner has the burden of demonstrating, by a preponderance of the evidence, that the existing rules enlarge, modify or contravene the specific provisions of law implemented. See, Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. Denied, 376 So.2d 74 (Fla. 1979); Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).

21. Petitioner has failed to meet his burden of proving these rules invalid for several reasons. First, rules 10D- 6.072(3)(d), (e), and (f) implement and make specific the statutory mandate that the Department shall provide qualifications for contractors.

22. Section 489.553(2), Florida Statutes (Supp. 1996), provides: “The department shall administer, coordinate, and enforce the provisions of this part, provide qualifications for applicants, administer the examination for applicants, and be responsible for the granting of certificates of registration to qualified persons.”

23. Section 489.553(3), Florida Statutes (Supp. 1996), further provides: “The department shall adopt reasonable rules, including, but not limited to, rules which establish ethical standards of practice, and may amend or repeal the same in accordance with the Administrative Procedures Act.”

24. As the agency charged with issuing licenses or

    registrations in this area, the Department is vested with discretion to determine the fitness of applicants for its licenses. “Discretionary authority is necessary for agencies involved in the issuance of licenses and the determination of fitness of applicants for licenses. This discretionary authority is particularly necessary where an agency regulates ‘occupations which are practiced by privilege rather than by right and which are potentially injurious to the public welfare.’” Astral Liquors, Inc. v. Department of Business Regulation, 463 So.2d 1130, 1132 (Fla. 1985) (citations omitted); see also, North Broward Hospital District v. Mizell, 148 So.2d 1, 4 n.11 (Fla.

    1962) (“The general rule, which requires an express standard to guide the exercise of discretion is also subject to the exception that where it is impracticable to lay down a definite comprehensive rule, such as where regulation turns upon the question of personal fitness, or where the act relates to the administration of a police regulation and is necessary to protect the general welfare, morals, and safety of the public, it is not essential that a specific prescribed standard be expressly stated in the legislation. In such situations, the courts will infer that the standard of reasonableness is to be applied”).

25. Like the operation of a liquor business in Astral, the operation of a septic tank contracting business is a privilege rather than a right. Moreover, as demonstrated by the evidence adduced at the hearing, the improper installation and repair of

    septic tank systems has serious public health consequences. Thus, the Department is properly granted discretion to determine the fitness or minimal qualifications for septic tank contractors.

26. Second, Rules 10D-6.072(3)(d), (e), and (f) interpret and make specific the statutory mandate that contractors be of “good moral character.” Section 489.553(4)(a), Florida Statutes (Supp. 1996), provides: “To be eligible for registration by the department as a septic tank contractor, the applicant must be of good moral character.” The Department had determined that each of these three contractor qualifications are specific indicators of “good moral character,” which is not defined by the statute.

27. In this case, the Department’s interpretation of what constitutes “good moral character” is not only a permissible interpretation, but one that even the industry itself views as desirable and reasonable.

28. In fact, the Department’s interpretation of good moral character found in Rule 10D-6.072(3)(d) works to the applicant’s favor because it limits the time period (i.e., 5 years) during which an applicant’s prior revocation will be considered a factor in denying someone a license. Without this time limitation, an applicant’s prior revocation would always be considered in the decision to grant or deny licensure.

29. Third, Rules 10D-6.072(3)(d) and (e) implement the statutory authority the Respondent has to deny registration if it

    determines that an applicant has violated any provision of Part III of Chapter 489, Florida Statutes.

30. Section 489.558(2), Florida Statutes (Supp. 1996), provides, in pertinent part: “The department may deny a registration if it determines that an applicant does not meet all requirements of this part or has violated any provision of this part.”

31. In addition to the specific statutes, Rules 10D- 6.072(3)(d), (e), and (f) implement and/or interpret, each of these rules is reasonably related to the Respondent’s mandate to protect public health and prevent sanitary nuisances. See Sections 381.0065(3)(c) and 381.0011(4), Florida Statutes (Supp. 1996).

32. In summary, Petitioner has failed to meet the burden of showing, by a preponderance of the evidence, that Rules 10D- 6.072(3)(d), (e) and (f), Florida Administrative Code, improperly enlarge, modify or contravene the specific statutes implemented.

33. While these rules are valid and within the specific powers granted by the enabling statutes, the Respondent has the authority to waive the requirements of its rules pursuant to the provisions of section 120.542, Florida Statutes (Supp. 1996), and the uniform rules adopted under the authority of that section. A person subject to Respondent’s rules can apply for a waiver from that rule by filing a petition with the Respondent. The petition must include the specific facts that would justify a waiver for

the petitioner, and the reason why the requested waiver would serve the purposes of the underlying statute. Section 120.542(5), Florida Statutes (Supp. 1996). The Petitioner must demonstrate “that the purpose of the underlying statute will be or has been achieved by other means by the person and that “application of a rule would create a substantial hardship or would violate principles of fairness.” Section 120.542(2), Florida Statutes (Supp. 1996). Notice of the petition would be published in the Florida Administrative Weekly and interested persons could provide comments on the petition. Section 120.542(6), Florida Statutes (Supp. 1996). The Respondent’s decision to grant or deny the petition must be supported by competent, substantial evidence and be made within 90 days from receipt of the petition.

FINAL ORDER

Upon the foregoing findings of fact and conclusions of law, it is

ORDERED that the Petitioner’s request is DENIED.

DONE and ORDERED this 8th day of May, 1997, at Tallahassee, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997.

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

Tricia A. Matthews, Esquire Department of Health

1317 Winewood Boulevard

Building 6, Room 102

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard

Building 2, Room 204

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 Bnuilding 6, Room 102-E

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO JUDICIAL REVIEW

A Party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 97-001097RX

Orders for Case No: 97-001097RX