STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8312

)

MARY H. NODA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E.

Donnelly, held a formal hearing in the above styled case on March 4, 1992, in New Port Richey, Florida.

APPEARANCES

For Petitioner: George W. Butler, Jr., Esguire

HRS District V Legal Office 701-9 4th Avenue North

St. Petersburg, Florida 33702

For Respondent: Mary H. Noda, pro se

7831 Bridle Path Row Hudson, Florida 34667

STATEMENT OF THE ISSUES

Whether the Department of Health and Rehabilitative Services should revoke Respondent's certificate of registration as a septic tank contractor.

PRELIMINARY STATEMENT

By letter dated December 3, 1991, the Respondent, Mary

H. Noda (Noda), requested a formal hearing to contest a decision made by Petitioner, Department of Health and Rehabilitative Services (the Department), to revoke her registration as a septic tank contractor. In its notice of revocation, the Department

contends Respondent Noda obtained her certificate of authorization to practice under a fictitidus name by means of fraud, misrepresentation, and concealment of material facts. Respondent disputes these allegations.

During the hearing, the Department called two witnesses and offered 13 exhibits, which were received into evidence. The

Respondent testified in her own behalf.

A transcript of the proceeding was not ordered. The opportunity to file proposed findings of fact was waived by the Respondent. Rulings on the proposed findings of fact submitted by the Department are in the Appehdix to this Recommended Order.

FINDINGS OF FACT

1. Respondent Noda is the sister of B.E. James, a

   former septic tank contractor who surrendered his registration to the Department in September 1990 to avoid revocation proceedings related to defective drain field repair at a mobile home park.

   
   

2. In September 1990, B.E. James asked the Respondent if she would like to buy his business equIpment from him. She

   and her husband had previously invested in the business in 1980. Before selling their share of the business back to B.E. James in 1983, Respondent drove the pump truck part-time and learned how to pump out septic tanks. Knowing that her brother would not receive much money for a pump truck that is twenty years old

   elsewhere, Respondent decided to buy the equipment and to keep the septic pump out service accounts. These accounts dealt with

   only one of the services previously provided by her brother when he was a septic tank contractor. Respondent believed she could continue to handle the established accounts requiring pump out service in addition to generating new business. It was agreed that if she could get a certificate of registration from the Department as a septic tank contractor, she would buy the equipment.

   
   

3. On November 7, 1990, Respondent Noda made application to the Department for registration as a septic tank contractor, pursuant to Section 489.553, Florida Statutes. The application expressly stated Respondent would provide only a septage pump out service.

   
   

4. Respondent was determined eligible for registration on January 28, 1991. On that date, she received Registration #91-1007 from the Department.

   
   

5. Once the Respondent was registered as a contractor,

   she applied to the Department for a certificate of authorization to provide her service to the public under the fictitious name A&M James Septic Service. Her application dated February 5, 1991, states she is the only person in the business who can act as a septic tank contractor.

   
   

6. Respondent chose the name A&M James Septic Service for the following reasons: a) Her maiden name is M. James;

   b) When she worked in the business during the time period she and

   her husband were investors, her maiden name was included in the business name. During those years, the business was called B & M

   James Septic Tank Service; c) She placed the initial "A" in front of her name so that she could be listed first in the telephone directory's classified advertisements for pump out services; and

   d) She is a realtor by profession. She did not want to pump out septic tanks under the same professional name as the one used in her other business.

7. On February 15, 1991, Septic Tank Contracting Certificate #0569-93 was issued to A&M James Septic Service.

   
   

8. The equipment and the brother's former business were located on property owned by Respondent and her husband. She continued to do business at that location.

   
   

9. In addition to the purchase of her brother's equipment, Respondent purchased the telephone number previously used by him in the business known as James Septic Service.

   
   

10. This telephone number was not placed by Respondent on either her application for a septic tank contractor registration or her application for a septic tank contracting certificate of authorization.

    
    

11. The deadline for listing telephone numbers and placing advertisements in the telephone directory for New Port Richey closes in February of each year. The directory is published in May. In February 1991, Respondent paid for an advertisement in the telephone directory and made sure her business was listed in the white pages Respondent's business is listed in the white pages as James Septic Service. One advertisement in the yellow pages shows the name of the business as A&M James Septic Service.

    
    

12. Contrary to the application for septic tank

    contractor registration and the application for septic tank contracting certificate of authorization, an advertisement in the yellow pages of the telephone directory offered an additional type of septic tank contracting service. It stated the business

    would also do drain field repair.

    
    

13. B. E. James resides at the address where Respondent's business is located. Respondeint hired him to drive her truck and to answer the telephone. When B.E. James was a registered septic tank contractor at this telephone number and location, he answered the telephone and drove the truck in addition to his contracting duties.

    
    

14. After B.E. James became an employee of A&M James Septic Service, he continued to answer the telephone as James Septic Service.

    
    

15. The manner in which the telephone belonging to Respondent's business is answered by the former contractor, the use of the same telephone number and address, the similar business name, the same driver, the use of the same equipment, the advertisement offering additional septic tank contractor services beyond those applied fdr by Respondent but previously offered by B.E. James, collectively demonstrate that Respondent sought to preserve any good will previously acquired by her brother without the legal responsibility for his prior professional mistakes.

    
    

16. Respondent's attempt to salvage any benefits from her brother's former business misled the public and the

    Department. For all practical purposes, it appeared B.E. James was still in the septic tank conttacting business.

    
    

17. If the Department had known the same telephone number was going to be used and that B.E. James would be handling the telephone calls and answering the

    telephone as James Septic Service, the septic tank contracting certificate of authorization to Respondent would not have issued.

    
    

18. On March 4, 1991 a Pasco County Occupational License for septic tank cleaning, installation and repair was issued to A&M James Septic Service which incorrectly listed the number of employees as one, and named B. E. James as the owner.

    
    

19. Two days later, Respondent noticed the county's mistake and had the license corrected to reflect that she was the owner and that the business had two employees.

    
    

20. The full extent of B.E. James' role in the business and Respondent's intent to use his former business telephone number were material facts concealed from the Department during the registration and certification process.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to

    Section 120.57(1), Florida Statutes.

    
    

22. The Department is the agency charged with the duty to

    administer, coordinate and enforce the provisions of Chapter 489, Part III, Florida Statutes, relating to septic tank contracting.

    In this case, the Department seeks to revoke Respondent's

    registration as a septic tank contractor along with the certificate of authorization which allows Respondent to provide a septic pump out service under the fictitious name of A&M James

    Septic Service. The alleged basis for the revocation of the registration and authorization is that Respondent obtained the

    certificate of authorization to practice under a fictitious name by means of fraud, misrepresentation, and concealment of material facts.

    
    

23. During disciplinary proceedings, the Department has the burden of proving that the alleged violations occurred. Sections

    489.555(4) and 489.556, Florida Statutes. The proof must be established by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 19? 87).

    
    

24. Section 489.556, Florida Statutes, provides as follows, in pertinent part:

    
    

    A certificate or registration may be suspended or revoked upon a showing that the registrant has:

    * * *

    (3) Obtained his registration or . authorization by means of fraud, misrepresentation, or concealment by material facts.

    
    

25. Rule 10D-6.074, Florida Administrative Code, provides that revocation of registration is the disciplinary measure utilized when a registrant has obtained authorization by concealing a material fact. The authority to establish

    revocation as the penalty for such conduct is found in Section 489.553(3), Florida Statutes.

    
    

26. While neither fraud nor misrepresentation to the Department were proved at hearing, it is clear that the Respondent concealed the full extent of her brother's role in the newly formed business. She also concealed her plan to use his former septic tank business telephone number from the Department. Had these facts been known, the registration and authorization for the business known as A&M James Septic Service would not have issued.

    
    

27. After withholding this Information from the Department, Respondent placed a telephone listing and an advertisement in the telephone directory that gave the appearance that her brother's former business was still in operation. These actions thwarted the Department's enforcement action against B.E. James which became final on September 20, 1991.

    
    

28. It appears that Respondent may have naively focused on her attempt to salvage the goodwill and customer loyalty her brother had acquired in his business instead of how her actions could mislead the public. Nevertheless, there is a clear pattern of practice in her preliminary preparations for operation of her business that reveals she was concealing information from the Department. This concealment may have helped B.E. James to act as a septic tank contractor without registration, in violation of Section 489.555(1), Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That the authorization to do business as A&M James Septic Service be revoked as the name intentionally misleads the public into believing James Septic Service is still in operation.

   
   

2. That Respondent's registration as a septic tank contractor be revoked for the concealment of material facts in her application for authorization to do business as A&M JamesSeptic Service.

DONE and ENTERED this 3 day of April, 1992, in Tallahassee, Leon County, Florida.

VERONICA E. D0NNELLY

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3 day of April, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-8312

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #3.

2. Accepted. See HO #1.

3. Accepted. See HO #8.

4. Accepted. See HO #2.

5. Accepted. See HO #2.

6. Accepted. See HO #9.

7. Accept all but fourth sentence. Contrary to fact.

8. Accepted. See HO #? and #9.

9. Accepted. See HO #5.

10. Accepted. See HO #7.

11. Accepted. See HO #11.

12. Rejected. Contrary to fact. See HO #18 and #19.

13. Accepted.

14. Accepted.

15. Accepted.

16. Accepted. See HO #14.

17. Rejected. Contrary to fact. Not established at hearing as only hearsay was provided on this matter.

COPIES FURNISHED:

GEORGE W BUTLER JR ESQ

HRS DISTRICT V LEGAL OFFICE 701 - 94TH AVENUE N

ST PETERSBURG FL 33702

MARY H NODA

7831 BRIDLE PATH ROW HUDSON FL 34667

RICHARD S POWER AGENCY CLERK

DEPT OF HEALTH AND REHABILITATIVE SERVICES

1323 WINEWOOD BLVD

TALLAHASSEE FL 32399 0700

JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND

REHABILITATIVE SERVICES 1323 WINEWOOD BLVD

TALLAHASSEE FL 32399 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-008312

Orders for Case No: 91-008312