STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ED SMITH, d/b/a RIVERSIDE VILLAGE ) MOBILE HOME PARK, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-4094

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on February 6, 1987, in Tampa, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: James A. Sheehan, Esquire

One Fourth Street, North, Suite 800 St. Petersburg, Florida 33701

For Respondent: Carol M. Dittmar, Esquire

4000 West Buffalo Avenue, Suite 520

Tampa, Florida 33614

At the hearing, Ed Smith, d/b/a Riverside Village Mobile Home Park, Inc. (Petitioner), testified on his own behalf and also called Curtis E. Lloyd to testify. The Department of Health and Rehabilitative Services (Respondent) called Harry Messick, Norman Vik and Neil R. Schobert, all of whom work with the Hillsborough County Health Department. Each party also introduced two exhibits. No transcript of the hearing has been filed. A ruling on timely filed proposed findings of fact is included in the Appendix to this Recommended Order.

Petitioner made an ore tenus motion to dismiss the Administrative Complaint following the conclusion of Respondent's case-in-chief. In accordance with Rule 221-6.16(3), Florida Administrative Code, a ruling on said motion is included in this Recommended Order.

FINDINGS OF FACT

1. Ed Smith is the President of Riverside Village Mobile Home Park, Inc., which in turn is the owner of the mobile home park in question in this case. The mobile home park is located in Ruskin, Hillsborough County, Florida.

   
   

2. Petitioner was served with an Administrative Complaint alleging that the chlorine residual in the park water supply distribution system was inadequate and that this constituted a violation of Chapter 513 and Section

   386.041(1)(f), Florida Statutes, as well as Rule 10D-26.67(1), Florida Administrative Code. Specifically, the Administrative Complaint alleges violations occurring between July 16, 1986 and July 29, 1986, and seeks the imposition of a civil penalty in the amount of $500 per day which "shall be calculated when this complaint is received by the (Petitioner), and will run until the violation has been corrected." Petitioner requested a hearing to contest these allegations, and his request was filed with Respondent's Clerk on October 8, 1986.

   
   

3. It was not established by competent substantial evidence when Petitioner "received" the Administrative Complaint which is the subject of this action.

   
   

4. The only evidence of any violation occurring between July 16 and July 29, 1986 was the testimony of Harry Messick who signed an Official Notice and Notice of Intended Action which were both dated July 16, 1986, and which alleged that "chlorine reading found at time of inspection (was) between 0.1 ppm and (a) trace." However, Messick did not perform any test to either produce or confirm this result. He testified that someone else performed the field test, but there was no testimony from anyone else who may have actually conducted a test on Petitioner's water supply system on July 16, 1986. Therefore, it has not been established by competent substantial evidence that Petitioner's water supply system on July 16, 1986, was in violation of the requirement that .2 mg/1 of free chlorine residual be maintained.

   
   

5. Testimony from Respondent's other witnesses, Norman Vik and Neil R. Schobert, indicates Vik was not even at Petitioner's mobile home park between July 16 and 29, 1986, and the only test conducted by Schobert found that Petitioner's water supply system was in compliance on July 24, 1986.

   
   

6. Design modifications in Petitioner's water supply distribution system were approved by the Hillsborough County Health Department on July 9, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes. The Respondent is seeking to impose a civil penalty against Petitioner, and therefore has the burden of proof in this case. It must establish the alleged violations by clear and convincing evidence. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

8. Respondent has failed to meet its burden in this case. No violation at all has been proven, and therefore there is no basis to consider imposition of any penalty. Even if a violation had been proven, no penalty could be imposed since the penalty is to be calculated from the date when Petitioner received the Administrative Complaint, and no evidence was offered to establish when the Petitioner actually received the Administrative Complaint, or that any violations occurred thereafter.

RECOMMENDATION

Based on the foregoing, it is recommended that Respondent enter a Final Order DISMISSING the Administrative Complaint filed against Petitioner.

DONE AND ENTERED this 19th day of February 1987 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of February 1987.

APPENDIX

(DOAH Case No. 86-4094)

Rulings on Respondent's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2-3. Rejected in Findings of Fact 4, 5.

COPIES FURNISHED:

James A. Sheehan, Esquire Florida Federal Building One Fourth Street North Suite 800

St. Petersburg, Florida 33701

Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520

Tampa, Florida 33614

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

ED SMITH d/b/a RIVERSIDE VILLAGE MOBILE HOME PARK, INC.,

Petitioner,

vs. CASE NO. 86-4094

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). A copy of that Recommended Order is attached hereto.

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 for the conclusion that the "clear and convincing" standard is applicable. In this case the burden of Proof was on the Department to establish the allegations of the complaint by the "preponderance" of the evidence. Department of Health and Rehabilitative Services vs. Career Service Commission, 289 So2d 412 (Fla 4th DCA 1974), Fla Jur. 2d, Administrative Law, Section 81. This case is not remanded for an application of the preponderance standard because the Department did not establish when petitioner received the complaint.

Based upon the foregoing, it is

ADJUDGED, that the Administrative Complaint against petitioner be dismissed.

Substantiate the alleged violation by competent substantial evidence, the case is now closed.

DONE and ORDERED this 19th day of March, 1987, in Tallahassee, Florida.

GREGORY L. COLER

Secretary

COPIES FURNISHED:

James A. Sheehan, Esquire One Fourth Street, North Suite 800

St. Petersburg, Florida 33701

Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520

Tampa, Florida 33614

Donald D. Conn Hearing Officers

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 23rd day of March, 1987.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 9O4/488-2381

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO 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.

Docket for Case No: 86-004094

Orders for Case No: 86-004094