STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY B. THOMPSON, )

)

Petitioner, )

)

vs. ) Case No. 97-2851

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

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

APPEARANCES

Petitioner: Gregory B. Thompson, pro se

Post Office Box 251307 Holly Hill, Florida 32125

Respondent: Charlene J. Petersen, Chief Legal Counsel Volusia County Health Department

420 Fentress Boulevard Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Health properly denied Petitioner’s application for a master septic tank contractors (MSTC) registration.

PRELIMINARY STATEMENT

On February 10, 1997, Gregory Thompson applied to the Department of Health to become a registered master septic tank

contractor (MSTC). The Department denied his application because he was president of Rayco Properties, Inc., d/b/a Woody’s Septic Tank Service, hereinafter Rayco. Rayco was sanctioned after hearing in DOAH Case Numbers 95-5973 and 96-0573, in a disciplinary action taken against the qualifying septic tank contractor who was not the Petitioner. The corporation had its authorization to do business suspended for one hundred-twenty

(120) days and was fined four thousand four hundred fifty dollars ($4,450.00). Petitioner requested an Administrative Hearing regarding the Department’s denial.

At the formal hearing, the Respondent presented the testimony of Ed Barranco. The Respondent introduced four (4) exhibits which were received into evidence. The Petitioner called Ed Barranco, Chuck Luther, and Jerald Briggs. The Petitioner introduced three (3) exhibits which were received into evidence.

Subsequent to the hearing a transcript was not ordered, and the Respondent filed a Proposed Recommended Order on October 17, 1997. The Petitioner filed a letter requesting a ruling on a motion for the Department to provide him a transcript of the proceedings which was denied by an order entered October 24, 1997. The Petitioner did not timely file a proposed finding.

The Department’s proposed findings were read and considered.

FINDINGS OF FACT

1. The Department of Health is the agency responsible for the registration of septic tank contractors, the authorization of

   septic tank companies, and the enforcement of the statutes of rules pertaining to the registration and authorization of septic

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

2. The registration as a master septic tank contractor was recently enacted by the Legislature. Master septic tank contractor is held to a higher standard of scrutiny by the Department because a MSTC can perform certain functions in the field without Department of Health supervision. Further, a MSTC can advertise his special certification to the public.

3. Gregory Thompson, Petitioner, applied to the Department of Health to be registered as a MSTC.

4. At the time of his application, Petitioner was registered with the Florida Department of State as the president of Rayco Properties, Inc. At the time the cases against the corporation referenced above were brought, the Petitioner was the president of Rayco; however, the requested contractor who was the company’s qualifier was Donald P. Roberts, who was the sole qualifier for the company. See paragraphs 2 and 3 of the Recommended Order in Case Numbers 95-5973 and 96-0573 Final Order issued 2/28/97.

5. At the time of the Petitioner’s application for MSTC, Rayco had been found guilty of several septic tank contracting violations and an enforcement action was taken by the Department against Rayco and Donald R. Roberts. See DOAH Case Numbers

   95-5973 and 96-0573.

6. Pursuant to the Final Order, penalties were assessed against Rayco including a fine of four thousand four hundred fifty dollars ($4,450.00) and suspension of the corporation's Certificate of Authorization for one hundred-twenty (120) days. At the time of the application by the Petitioner, neither of these penalties had been resolved.

7. The previous action was against Rayco and its qualifier, Donald R. Robert. As the Administrative Law Judge concluded in paragraph 82 of her order, “Revocation of the company’s authorization would effect the livelihood of numerous company principals and employees not directly involved in any of the proven violations.”

8. The Department denied the Petitioner’s application for MSTC for three (3) reasons. The Petitioner’s corporation had been adjudicated guilty of minor or moderate infractions pertaining to on site sewage treatment and disposal systems (See paragraph 82 of the Recommended Order in Case Numbers 95-5973 and 96-0573), a copy of which is attached as Appendix 1. There was an outstanding fined assessed against Rayco Properties and the one hundred-twenty (120) day suspension of Rayco had not been resolved as required by the Florida Administrative Code.

9. At the time of the formal hearing, the fine had been paid and the corporation had served and completed the

   one hundred-twenty (120) days' suspension.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has

    jurisdiction over the parties and the subject matter, and this Order is issued pursuant to Section 120.57(1), Florida Statutes.

11. Florida law pertaining to registered septic tank contractors and the certifications of corporations is found in Section 489.555, Florida Statutes. Persons desiring to engage in septic tank servicing in the state of Florida must be registered septic tank contractors. Once registered, individuals may provide septic services to the citizens of the state. Registered contractors are also given the option by the Department of Health to offer septic tank services under the auspices of a corporation which must obtain a Certificate of Authorization. Although a registered contractor is not required to incorporate, a corporation may operate only through the auspices of a certified contractor.

12. The Department denied the Petitioner for three (3) reasons relating to disciplinary actions taken against Rayco and its qualifying registered contractor. The grounds for denial of the Petitioner relating to the corporation’s suspension and the non-payment of the fine were resolved at the time of the formal hearing. The only remaining grounds for denial of the Petitioner’s application for MSTC was the Petitioner’s status as president of Rayco when the disciplinary action was taken against its qualified contractor. In sum, the Department seeks to deny Petitioner because he was an officer of Rayco and a septic tank contractor, although not the qualifying contractor for the corporation, when the violations occurred, which were the subject of Case Numbers 95-5973 and 96-0573.

13. The Department’s Proposed Recommended Order states in part that “Florida Statutes are very clear that a corporation does not have a certification of registration to perform septic tank services. (See Section 489.555(1), Florida Statutes.)” The authority to discipline follows the registration as the basis for jurisdiction over the entity being disciplined, and that entity is the registered contractor, Donald R. Robbers, who was the sole qualifier for Rayco. The Department is stigmatizing the Petitioner because of the acts of another person, Donald R. Robbers, who the Department recognized as the responsible individual in a regulatory scheme that specifically provides that the corporation is not the registrant.

14. There is no evidence presented in the instant case that the Petitioner knew of, concurred in, or knowingly participated in the violations attributed to Rayco. The Administrative Law Judge in the previous case found none of the corporate officers directly involved in the proven violations. The Petitioner’s denial is based purely upon Petitioner’s status as an officer of a corporation.

15. The Department basis its authority to deny the Petitioner upon the language of Section 489.555, Florida Statutes. Section 489.555, Florida Statutes, provides as follows:

    1. The practice of or the offer to practice septic tank contracting services by registrants through a corporation or partnership offering septic tank contracting services to the public through registrants

       under this chapter as agents, employers, officers or partners is permitted, provided that one or more of the principal officers of the corporation or one or more partners of the partnership and all personnel of the corporation or partnership who act in its behalf as septic tank contractors or master septic tank contractors in this state are registered as provided by this part, and further provided that the corporation or partnership has been issued a certificate of authorization by the department as provided in this section. Nothing in this section shall be construed to mean that a certificate of registration to practice septic tank contracting shall be held by a corporation.

       No corporation or partnership shall be

       relieved of responsibility for the conduct or acts of its agents, employees, or officers by reason of its compliance with this section, nor shall any individual practicing septic tank contracting be relieved of responsibility for professional services performed by reason of his or her employment or relationship with a corporation or partnership.

    2. For the purposes of this section, a certificate of authorization shall be required for a corporation, partnership, association, or person practicing under a fictitious name, offering septic tank contracting services to the public, except that when an individual is practicing septic tank contracting in his or her own given name, he or she shall not be required to register under this section.

    3. Each certification of authorization shall be renewed every 2 years. Each partnership and corporation certified under this section shall notify the department within 1 month of any change in the information contained in the application upon which the certification is based.

    4. Disciplinary action against a corporation or partnership shall be administered in the same manner and on the same grounds as disciplinary action against a registered septic tank contractor or master septic tank contractor.

16. Although Petitioner was registered as a septic tank

    contractor at the time of the disciplinary action against Rayco, he was not the contractor registered for the company. No evidence was presented that Petitioner performed any professional services which were found wanting. Therefore, in the absence of specific proof of previous wrong doing by the Petitioner, the disciplinary action against the previous registered individual, who was qualifying the corporation, cannot be a basis for denying the Petitioner’s application for MSTC.

17. Acts of the corporation are the responsibility of the qualifying contractor, and the qualifying contractor is deemed to be responsible for all the corporation’s acts. However, this provision does not extend precarious liability to other corporate officers who were not qualifiers.

RECOMMENDATION

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

RECOMMENDED:

That the Department grant the request for certification by the Petitioner for master septic tank contractor.

DONE AND ENTERED this 3rd day of November, 1997, in Tallahassee, Leon County, Florida.

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 3rd day of November, 1997.

COPIES FURNISHED:

Gregory B. Thompson Post Office Box 251307

Holly Hill, Florida 32135

Charlene Petersen, Esquire Volusia County Health Department

420 Fentress Boulevard Daytona Beach, Florida 32114

Angela T. Hall, Agency Clerk Department of Health Building 6

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: 97-002851

Orders for Case No: 97-002851