STATE OF FLORIDA DEPARTMENT OF HEALTH

TIMOTHY M. BEEBE,

Petitioner,

vs. DOH/DOAH Case No. 00-0346 DEPARTMENT OF HEALTH,

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for entry of a Final Order.

The Administrative Law Judge assigned by the Division of Administrative Hearings (DOAH) submitted a Recommended Order to the Department of Health ("the Department"). The Recommended Order entered on June 21, 2000 by Administrative Law Judge P. Michael Ruff, to the extent not otherwise modified, is adopted and incorporated by reference.

The Respondent timely requested an extension of time to file exceptions in order to obtain a transcript. The request, unopposed by Petitioner, was granted giving Respondent fifteen

1. days after the filing of the transcript to file exceptions to the Recommended Order. The transcript was filed on July 19, 2000 and Respondent timely filed exceptions on July 26, 2000; these exceptions are addressed below. The Petitioner did not file exceptions, but filed an untimely response to the Respondent's exceptions, which have been considered by the Department. However, the response to the exceptions will not be specifically addressed in this Final Order, as there is no statutory or rule provision that requires that an agency rule on responses to exceptions.

   RULING ON EXCEPTIONS

   
   

   Exception 1:

   
   

   The Respondent takes exception to paragraphs 20, 21, 34, 35, and 36 of the Recommended Order in which the Administrative Law Judge found that the Respondent had failed to prove a substantial connection between Petitioner's good moral character and the professional responsibilities of a registered contractor. The

   Administrative Law Judge accepted Petitioner's explanation of his conduct as being one of negligence due to his son's illness and not a lack of good moral character. Respondent's arguments that there is no substantial competent evidence in the record to support these findings, that the Administrative Law Judge made an independent judgment as to what constitutes good moral character, and that the findings are contrary to the agency's statutory interpretation are rejected.

   
   

   1. "An agency may not reject or modify findings of fact unless it first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon substantial evidence", as stated in section 120.57(1)(1), Florida Statutes. The determination of good moral character lies ultimately with the trier of fact as the issue is not infused with policy considerations and is determinable by ordinary methods of proof through the weighing of evidence and judging the credibility of witnesses. See Holmes v. Turlington, 480 So. 2d 150 (Fla. 1st DCA, 1985) In the instant case, the Administrative Law Judge found that the Petitioner had previous discipline involving septic tank contracting which by itself may infer a lack of good moral character. However, the Administrative Law Judge found that Petitioner's explanation of his past violations, namely his son's medical condition, was credible and rebutted any inference of a lack of good moral character. In Bush v. Brogan, 725 So. 2d 1237 (Fla. 2nd DCA, 1999) the Administrative Law Judge found Mr. Bush guilty of misconduct for battery on his wife but it didn't rise to the level of gross immorality or moral turpitude. The Final Order by the Education Practices Commission (EPC) didn't change the facts but did change the ultimate conclusion, namely that the battery did rise to the level of gross immorality or moral turpitude and punishment was proper. On appeal, the court, using the reasoning in Holmes, reversed the final order stating that the EPC couldn't substitute its judgment of facts for the Administrative Law Judge. Respondent's exceptions to paragraphs 20, 21, 34, 35, and

      36 would have the agency substitute its judgment of the facts for

      the Administrative Law Judge or find that as a matter of law, prior discipline equals a lack of good moral character. As this is inconsistent with Holmes and Bush, exception 1 is denied.

      
      

      Exception 2:

      
      

   2. Respondent takes exception to paragraph 23 of the Recommended Order in which the Administrative Law Judge found that Mr. Beebe did not intentionally disregard any fines, costs or other requirements imposed by state agencies or court but was unable to comply due to his son's illness. Respondent argues there is no substantial competent evidence to support Mr. Beebe's lack of intent to comply. Respondent's argument goes to the credibility

      and weight of the evidence not the lack of competent or substantial evidence. While Respondent admits there was evidence of the expenses Mr. Beebe incurred due to his son's illness, it is not specific enough to support a finding of fact that he did not intentionally disregard the fines he was to pay. A determination of the credibility and weight of the evidence is the essence of the role of the trier of fact. The agency may not replace its judgment for that of the trier of fact. Even if the evidence did not support the finding of fact, the determination of a lack of good moral character due to non-payment of fines lies with the Administrative Law Judge not the agency. (See Holmes and Bush, Id.) Therefore, Respondent's Exception 2

      is denied.

      
      

      Exception 3:

      
      

   3. Respondent takes exception to the first and second sentences of paragraph 27 of the Recommended Order because there is no competent substantial evidence to support the finding. The exception is well founded because Mr. Beebe only testified he didn't personally dump without permission.(T 43) Nowhere did he testify as to a lack of personal knowledge of the acts or that he did not direct his employees to commit dumping without permission. The record only supports a finding that Petitioner accepted responsibility for the violations that occurred between 1993 and 1994. Based on the record, Respondent's exception 3 is granted.

      Exception 4:

      
      

   4. Respondent takes exception to paragraph 28 of the Recommended Order and requests it be rejected because there is competent substantial evidence demonstrating a substantial connection between the negligent performance of septic tank repairs in 1994 and Petitioner's good moral character.

      Respondent is asking the agency to substitute its judgment of the facts for the Administrative Law Judge and for the reasons stated in paragraph 2 above, it cannot. Respondent's exception 4 is denied.

      Exception 5:

      
      

   5. Respondent takes exception to paragraph 28 of the Recommended Order and requests it be rejected because there is no competent substantial evidence demonstrating that Petitioner was working for his father or brother when he made illegal repairs in 1994. The record does support this finding as Petitioner testified that he now works for his brother and had been for seven (7) or eight (8) months. Mr. Beebe also testified that he had been active with him father's septic tank business from the

      age of eleven (11) to the present.(T 40) Thus this part of the exception is rejected. Respondent also argues there is no competent substantial evidence demonstrating a substantial connection between the negligent performance of septic tank repairs in 1994 and Petitioner's good moral character. Paragraph

      28 of the Recommended Order is identical to paragraph 27 as to this finding. For the reasons stated in paragraph 2 above, this part of Respondent's exception 5 is also rejected.

      Exception 6:

      
      

   6. Respondent takes exception to the first sentence of paragraph 30 of the Recommended Order and requests it be rejected because there is no competent substantial evidence demonstrating that Petitioner's son's medical bills were not all paid by the state. The record reflects that not all medical bills were paid and Petitioner still incurred travel expenses in caring for his son. (T 53, 54) Respondent's exception 6 is rejected.

      
      

      Exception 7:

      
      

   7. Respondent takes exception to the first sentence of paragraph 32 of the Recommended Order and requests it be rejected because there is competent substantial evidence demonstrating that Petitioner's prior discipline did include an act of environmental harm after his February 1994 revocation. There is no evidence of environmental harm in the record. Respondent assumes it from the fact the violations occurred but presented no evidence of actual environmental harm. For this reason, Respondent's exception 7 is rejected.

      Exception 8:

      
      

   8. Respondent takes exception to the first sentence of paragraph 33 of the Recommended Order and requests it be rejected because there is competent substantial evidence demonstrating that Petitioner was disciplined by the circuit court for two illegal repairs in December 1995 and January 1996 in the form of a contempt order. Section 381.0065, F.S., requires that septic tank work be performed by a licensed septic tank contractor with a valid permit for the work. Section 381.0012, F.S., authorizes the Department to enforce its statutes by circuit court action. It is clear that Petitioner had enforcement action taken against him but since he did not have a license it wasn't discipline. Respondent's exception 8 is granted only as to the date of the last violation being January 1996 not November 1994.

      Exception 9:

   9. Respondent takes exception to paragraphs 39, 41, 42, 43, 44, and 45 of the Recommended Order and requests they all be rejected as contrary to law. As to paragraph 39, Respondent argues that Petitioner didn't meet his burden because he offered no evidence of good moral character. As stated in paragraph 2 above, the determination of good moral character lies ultimately with the trier of fact as the issue is not infused with policy considerations and are determinable by ordinary methods of proof through the weighing of evidence and judging the credibility of witnesses. (See Holmes) The Administrative Law Judge found Mr. Beebe to posses good moral character which the Department cannot overturn as a conclusion of law. See Langston v. Jamerson, 653 So. 2d. 489 (Fla. 1st DCA 1995) Respondent's exception to paragraph 39 of the recommended order is rejected.

      
      

   10. As to paragraph 41 of the recommended order, the Respondent is correct that Petitioner has the burden of proving by the preponderance of the evidence that he has satisfied the requirements for licensing by demonstrating that the agency's decision was arbitrary and capricious. Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250 (Fla. 3rd DCA 1999) Accordingly, paragraph 41 of the recommended order is modified to reflect the correct burden of proof.

       
       

   11. As to paragraph 42 of the recommended order, the Administrative Law Judge correctly concluded that Respondent's failure to inquire beyond the record was arbitrary. Respondent didn't discuss its concern regarding his good moral character with the Petitioner nor make any inquiries beyond those sources which supported Respondent's conclusion. Rule 64E-6.019(4)(b), Florida Administrative Bode requires an applicant for septic tank contractor registration submit affidavits of two persons not related to the applicant but for whom the applicant has performed services attesting to his good moral character. Nothing in the record indicates that these were not submitted or that Respondent inquired of these individuals. Respondent's witness testified that he looked over Mr. Beebe's record and talked to the county (health department) to see what they said. (T 80) Respondent should have asked Petitioner to explain his character.

       Respondent needed both sides of the facts before making a

       rational, logical and fair decision. Respondent's exception to paragraph 42 of the recommended order is rejected.

       
       

   12. As to paragraphs 43, 44 and 45 of the recommended order, Respondent's exceptions are rejected for the reasons stated in Holmes and Bush. The determination of good moral character is not infused with policy considerations such that the agency's expertise should be given great weight. The Respondent appears to argue that prior discipline is, as a matter of law, equal to a lack of good moral character. This is not what

section 489.553, F.S., requires. It requires a substantial connection between good moral character and the professional responsibilities of a registered contractor which is a factual determination. The Administrative Law Judge found no such connection.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in paragraphs one (l) through thirty-six (36) of the Recommended Order as modified above.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in paragraphs thirty-seven (37) through forty-five (45) of the Recommended Order as modified above.

In the Recommended Order, the Administrative Law Judge concluded that the Petitioner possesses good moral character within the meaning of section 489.533(4)(a), F.S., and that Petitioner's application for registration as a septic tank contractor should be granted. The Recommended Order as modified is hereby adopted and approved.

BASED ON THE FOREGOING, it is hereby ORDERED that Petitioner's application for registration as a septic tank contractor be granted.

DONE and ORDERED this 31st day of August, 2000, in Tallahassee, Florida.

ROBERT G. BROOKS, M.D.

Secretary, Department of Health

By: for Richard G. Hunter, Ph.D.

Deputy State Health Officer

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 MAY BE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF HEALTH AND A SECOND COPY ACCOMPANIED BY THE FILING FEES REQUIRED BY LAW

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES OR THE FIRST DISTRICT COURT OF APPEAL. THE NOTICE MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THIS FINAL ORDER.

Copies furnished to:

Daniel Manry Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Ann Cole, Clerk

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Michael F. Kayusa, Esq.

P.O. Box 6096

Fort Myers, Florida 33911

Susan M. Scott, Esq. Department of Health

P.O. Box 9309

Fort Myers, Florida 33902-9309

Gerald Briggs, Acting Chief Bureau of Onsite Sewage Programs Department of Health

Bin A08

4052 Bald Cypress Way Tallahassee, Florida 32399-1713

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent by regular U.S. mail or by facsimile transmission to the above-named persons this 31st day of August, 2000.

Amy M. Jones

Acting Agency Clerk Department of Health

Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, FL 32399-1703 ph.(850)245-4005

fax(850)410-1448

Docket for Case No: 00-000346

Orders for Case No: 00-000346