STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL D. DOBBS, )

)

Petitioner, )

)

vs. ) Case No. 97-1856

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for consideration before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on June 26, 1997, in Gainesville, Florida.

APPEARANCES

For Petitioner: Wayne Carroll, Esquire

4010 Newberry Road, Suite A Gainesville, Florida 32607

For Respondent: David A. West, Esquire

1000 Northeast 16th Avenue, Box 3

Gainesville, Florida 32601 STATEMENT OF THE ISSUE

The issue is whether Respondent should approve Petitioner's application for a septic tank contractor registration, pursuant to Chapter 489, Florida Statutes.

PRELIMINARY STATEMENT

On or about March 13, 1996, Respondent Department of Health (Respondent) denied the application of Petitioner

Michael D. Dobbs (Petitioner) for a septic tank contractor

registration. Petitioner requested an informal hearing pursuant to Section 120.57(2), Florida Statutes, on April 18, 1996.

The designated hearing officer conducted an informal hearing on October 24, 1996, in Lake Butler, Florida. During the hearing, Petitioner raised disputed issues of fact. On

December 31, 1996, the informal hearing officer entered an order recommending that Respondent refer the case to the Division of Administrative Hearings.

Respondent referred the case to the Division of Administrative Hearings on April 14, 1997. After receiving a response to the Initial Order, the undersigned scheduled a formal hearing on June 26, 1996.

At the hearing, the parties offered four joint exhibits which were accepted into evidence. Petitioner testified on his own behalf and presented the testimony of one witness.

Respondent presented the testimony of two witnesses.

Respondent revoked Petitioner's prior registration on November 18, 1993. Petitioner took the position that statutes and rules in effect in November of 1993 should govern the disposition of this case.

Petitioner applied for another registration on February 22, 1996. Respondent asserted that statutes and rules in effect in February of 1996 should determine whether Petitioner receives a septic tank contractor registration.

Taking official recognition of the pertinent statutes and

rules, the undersigned reserved ruling whether the 1993 or 1996 law should apply. For the reasons set forth below, the statutes and rules in effect when Petitioner filed his application on February 22, 1996, are applicable to determine whether Respondent properly denied Petitioner's application.

Respondent objected to the introduction of any evidence relating to facts which led to the revocation of Petitioner's registration on November 18, 1993, as being irrelevant and immaterial. The undersigned took this objection under advisement but allowed testimony regarding these matters and identified one exhibit offered by Petitioner relating to same. Based on the ruling that the 1996 statutes and rules apply here, Respondent's objection is sustained.

The parties did not file a transcript of the proceeding.

Respondent filed a proposed recommended order on July 16, 1997. Petitioner did not file a proposed order.

FINDINGS OF FACT

1. Respondent granted Petitioner a septic tank contracting registration on or about January 8, 1990.

2. On August 23, 1993, Respondent's predecessor served Petitioner with an Administrative Complaint. Said complaint alleged that Petitioner was guilty of committing the following violations: (a) violating Rule 10D-6.075(4)(m), Florida Administrative Code, by pumping a septic tank without a valid operating permit, after receiving notice that his company's

   operating permit had expired; and (b) violating Rule

   
   

   10D-6.075(4)(n), Florida Administrative Code, by improperly disposing of septage. The complaint proposed a $1000 fine and revocation Petitioner septic tank contractor registration and authorization.

3. The complaint advised Petitioner of his right to request an administrative hearing pursuant to Chapter 120, Florida Statutes. Petitioner did not request a hearing.

4. On November 18, 1993, Respondent's predecessor entered a final order, case number 93-0038S, revoking Petitioner's registration and authorization to provide septic tank contracting services and imposing a fine in the amount of $1,000.

5. Petitioner made the last payment on his administrative fine on February 10, 1995.

6. On February 22, 1996, Petitioner submitted the instant application for septic tank contractor registration. Respondent denied Petitioner's application by letter dated March 13, 1996. The basis of Respondent's denial was Petitioner's failure to meet the minimum registration eligibility requirements as set forth in Chapter 10D-6, Florida Administrative Code. The letter cited Rule 10D-6.072(3)(d), Florida Administrative Code, which prohibits a person from being eligible to take the registration examination if he or she has had a septic tank contractor registration revoked by Respondent within the last five years.

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57, Florida Statutes.

8. Petitioner has the burden of proving by a preponderance of the evidence that Respondent improperly denied his application for septic tank contracting registration. Dept. of Banking and Fin. V. Osborne Stern, 670 So. 2d 932 (Fla. 1996). He has not met that burden.

9. Section 489.553, Florida Statutes (1993), stated as follows, in pertinent part:

   (4) To be eligible for registration by the department as a septic tank contractor, the applicant must:

   1. Be of good moral character.

   2. Pass an examination approved by the department which demonstrates that the applicant has a fundamental knowledge of the state laws relating to the installation and maintenance of onsite sewage treatment and disposal systems.

   
   

   This section has not been amended since 1993. See Section 489.553(4), Florida Statutes (1995) and Section 489.553(4), Florida Statutes (Supp. 1996).

10. Rule 10-6.072(3), Florida Administrative Code, as amended on March 17, 1992, stated as follows:

    1. A person shall be eligible to take the registration examination if they submit necessary exhibits and fees and meet the following requirements:

       1. Is 18 years of age;

       2. Is of good moral character; and

       3. Has a total of at least 3 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 2 years of the active contracting experience.

       
       

11. Effective January 3, 1995, Rule 10-6.072(3), Florida Administrative Code, was amended as follows:

    1. A person shall be eligible to take the registration examination if they submit necessary exhibits and fees and meet the following requirements:

       1. Is 18 years of age;

       2. Is of good moral character;

       3. Has a total of at least 3 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 2 years of the active contracting experience. Each 30 hours of course work approved by the department may substitute for six months of work experience; (d) Has not had a registration issued by the department revoked within the last 5 years;

       1. Does not have a disciplinary case pending with the department involving septic tank contracting;

       2. Has not been convicted of a crime in any jurisdiction which is directly related to the practice of contracting.

       Rule 10D-6.072(3), Florida Administrative Code (January 3, 1995), (emphasis added). This rule was amended again on May 14, 1996.

       However, the most recent changes in the rule are not relevant here.

12. As a general rule, a change in the law that occurs while an application for licensure is pending controls as to that application. Lavernia v. Dept. of Prof. Regulation, 616 So. 2d 53, 53-54 (Fla. 1st DCA 1993).

13. Rule 10-6.072(3)(d), Florida Administrative Code (January 3, 1995), was effective before Petitioner filed his application for septic tank contractor registration on February 22, 1996. Petitioner's prior registration was revoked on November 18, 1993, less than five years before Petitioner filed the instant application. Accordingly, Respondent properly denied Petitioner's application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner's application for septic tank contractor registration.

DONE AND RECOMMENDED this 22nd day of July, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 22nd day of July, 1997.

COPIES FURNISHED:

David A. West, Esquire Department of Health

1000 Northeast 16th Avenue, Box 3

Gainesville, Florida 32601

Wayne Carroll, Esquire 4010 Newberry Road, Suite A Gainesville, Florida 32607

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health Building 6, Room 306

1317 Winewood Boulevard

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: 97-001856

Orders for Case No: 97-001856