00-000346 Timothy M. Beebe vs. Department Of Health Status: Closed Recommended Order on Wednesday, June 21, 2000.

Summary: Petitioner who showed there was no substantial connection between past violations of his company and Petitioner`s moral character is entitled to registration as a septic tank contractor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY M. BEEBE, )

)

Petitioner, )

)

vs. ) Case No. 00-0346

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on May 26, 2000, in

Fort Myers, Florida, by Daniel Manry, Administrative Law Judge

("ALJ"), Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Michael F. Kayusa, Esquire

1922 Victoria Avenue, Suite A

Post Office Box 6096

Fort Myers, Florida 33911

For Respondent: Susan Mastin Scott

Chief Legal Counsel

Department of Health

Post Office Box 9309

Fort Myers, Florida 33902-9309

STATEMENT OF THE ISSUE

The iss ue in this case is whether Respondent should deny

Petitioner's application for registration as a septic tank

contractor on the ground that Petitioner lacks good moral

character within the meaning of Section 489.553(4)(a), Florida

Statutes (1997). (All statutory references are to Florida

Statutes (1997) unless otherwise stated.)

PRELIMINARY STATEMENT

By letter dated November 24, 1999, Respondent denied

Petitioner's application for registration as a septic tank

contractor. Petitioner timely requested an administrative

hearing. On January 20, 2000, Respondent referred the matter to

DOAH for assignment of an ALJ to conduct the hearing.

At the hearing, Petitioner testified in his own behalf,

called no other witnesses, and submitted no exhibits for

admission in evidence. Respondent called two witnesses and

submitted one exhibit for admission in evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the record of the hearing.

Neither party requested a transcript of the hearing. Petitioner

and Respondent timely filed their respective proposed recommended

orders on June 9 and 7, 2000.

FINDINGS OF FACT

1. Respondent is the state agency responsible for the

registration and regulation of septic tank contractors in the

state. Petitioner was registered as a septic tank contractor

from March 29, 1991, to February 22, 1994, when Respondent's

predecessor, the Department of Health and Rehabilitative Services

(the "Department"), revoked Petitioner's registration.

2. Th e revocation of Petitioner's registration in 1994 was

based on various violations that began in 1991. In October 1991,

the Department of Environmental Regulation ("DER", now the

Department of Environmental Protection, or "DEP") charged

Petitioner's company with pumping untreated septage into a

manhole in Bonita Springs, Florida. Petitioner entered into a

Consent Order in which Petitioner agreed to pay an administrative

fine of $3,900 and to file prescribed reports and protocols with

DER. Petitioner did not pay the fine or complete the filing

requirements.

3. DER filed an action in circuit court in Collier County,

Florida to enforce the Consent Order against Petitioner.

Petitioner entered into a Stipulation and Consent Final Judgment

dated April 24, 1993. Pursuant to the Stipulation and Consent

Final Judgment, the court imposed a fine of $5,000.

4. Petitioner did not pay the $5,000 fine or comply with

any of the other terms of the consent judgment. DER received

information that on October 21, 1993, Petitioner's company again

dumped untreated septage into the utility system of Collier

County, Florida.

5. DER filed a motion for contempt for Petitioner's failure

to comply with the terms of the Stipulation and Consent Final

Judgment. The circuit court in Collier County ordered Petitioner

to pay Collier County $2,417 for the cost of repairing and

cleaning wastewater lines required by the dumping of septage

sludge into the county utility system. The court permanently

enjoined Petitioner from ever hauling septage or sludge and

required Petitioner to make monthly payments until the $5,000

penalty was paid in full.

6. Petitioner has not paid any portion of the $5,000

penalty ordered by the court. Petitioner has not paid the $2,417

in costs incurred by Collier County.

7. By Final Order dated May 26, 1993, the Department

imposed a $500 fine and six-month probation upon Petitioner

because Petitioner's company illegally dumped septage grease into

a collection system at Gulf Coast Camping Resort in Fort Myers.

Petitioner consented to the fine and probation.

8. During the probation, Petitioner's employees engaged in

six separate illegal dumpings into the Collier County Utility

System. Petitioner's company illegally spread unstabilized

septage on another occasion.

9. On February 22, 1994, the Department revoked

Petitioner's registration and imposed a fine of $4,000.

Petitioner violated the revocation order by performing four

septic system repairs between September and November in 1994.

The aggregate cost of the repairs to the customers was $4,150,

and the repairs were performed negligently.

10. On January 20, 1995, the Department filed a Petition

for Enforcement of Agency Action and Complaint for Injunctive

Relief in circuit court in Lee County, Florida. Petitioner did

not respond and defaulted.

11. On April 24, 1995, the circuit court in Lee County

enjoined Petitioner from engaging in any service related to

septic tank systems without the direct supervision of a

registered contractor. The court imposed an additional fine of

$1,000 and ordered Petitioner to pay the $4,000 fine that had

been imposed previously.

12. On May 31, 1995, Petitioner signed a promissory note

with the Department to evidence his obligation to pay the $5,000

in fines. Petitioner did not make the scheduled payments

required under the note.

13. In January 1996, the circuit court in Lee County issued

an Order to Show Cause why the court should not hold Petitioner

in contempt of court on two grounds. One ground was for

repairing septic tanks without the direct supervision of a

registered septic tank contractor and the other was for failing

to pay the $5,000 in fines previously ordered by the court.

14. On August 7, 1996, the court found Petitioner in

contempt on both grounds. The court ordered Petitioner to pay a

minimum of $100 each month until he paid the $5,000 in fines.

The first payment was due on August 1, 1996.

15. In April 1998, Petitioner filed a motion with the

circuit court in Lee County seeking to modify the injunction

against Petitioner. The parties settled the matter. Petitioner

agreed to pay the balance of $4,000 due on his fine, and the

Department agreed to delete the requirement for direct

supervision by a registered septic tank contractor. The court

adopted the stipulation of the parties on April 22, 1998.

Petitioner paid the remaining $4,000.

16. On October 26, 1999, Petitioner applied for

registration as a septic tank contractor. On November 24, 1999,

Respondent denied Petitioner's application for registration. The

sole ground for denial was that Petitioner failed to satisfy the

requirement in Section 489.553(4)(a) for good moral character.

17. In determining whether an applicant has good moral

character, Section 489.553(4)(a) authorizes Respondent to

consider:

. . . any matter that has a substantial

connection between the good moral character

of the applicant and the professional

responsibilities of a registered contractor,

including, but not limited to: the applicant

being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of contracting or the ability to

practice contracting; and previous

disciplinary action involving septic tank

contracting, where all judicial reviews have

been completed. (emphasis supplied)

18. It is uncontroverted that the prior disciplinary

history of Petitioner did not involve any criminal charges or

convictions. Section 489.553(4)(a) authorizes Respondent to

consider any non-criminal matter in determining Petitioner's good

moral character if the non-criminal matter satisfies two

conjunctive criteria in the statute. First, the non-criminal

matter must have a connection between both Petitioner's good

moral character and Petitioner's professional responsibilities.

Second, any such connection must be substantial.

19. It is uncontroverted that the non-criminal matters

considered by Respondent in determining if Petitioner possesses

good moral character are substantially connected to Petitioner's

professional responsibilities. The issue for determination is

whether there is a substantial connection between the non-

criminal matters considered by Respondent and Petitioner's good

moral character.

20. Neither party offered any evidence of the meaning of

the statutory criteria for a "substantial connection."

Respondent's expert did not define "substantial connection" but

opined that Petitioner's prior disciplinary history demonstrated

the requisite connection. That testimony is neither credible nor

persuasive. It is substantially equivalent to the circuitous

definition of obscenity offered by one who can't define the term

but knows it when he sees it. It is inherently subjective and

invites abuse of agency discretion.

21. If Petitioner had offered no explanation for the non-

criminal matters in his disciplinary history, the nature and

extent of Petitioner's disciplinary history might be sufficient

to "infer" a substantial connection between the non-criminal

matters and Petitioner's good moral character if such an

inference were authorized by statute. However, Petitioner did

offer an explanation for his disciplinary history. Petitioner's

explanation was credible and persuasive and successfully rebutted

any inference of a substantial connection between Petitioner's

past disciplinary history and Petitioner's good moral character.

22. Petitioner was 21 in 1991 and the sole owner of his

business. Petitioner did not personally dump untreated septage

into the Collier County Utility System. Nor did Petitioner

direct his employees to do so. Petitioner's employees carried

out the dumpings without Petitioner's knowledge. When Petitioner

learned of the violations, Petitioner accepted responsibility for

the actions of his employees and entered into consent orders with

the state agency.

23. Petitioner did not intentionally disregard any fines,

costs, or other requirements imposed by state agencies or courts.

Petitioner was unable to comply with the orders or to pay fines

and costs imposed in the orders because of circumstances beyond

Petitioner's control that began with the birth of his son.

24. In 1992, Petitioner's son who was born immune

deficient. Two or three times a week, Petitioner and his wife

took their son for treatment at the hospital in St. Petersburg,

Florida and at Shands Teaching Hospital at the University of

Florida. Petitioner and his wife devoted all of their time,

attention, and financial resources to the care and treatment of

their son.

25. The cos t of medical care for Petitioner's son exceeded

$3 million and exhausted the $2 million coverage available in

Petitioner's personal health insurance policy. All of

Petitioner's financial resources went into the care of his son.

Petitioner's wife could not work because she devoted all of her

time to the care of her son. Although the state eventually paid

the amount of medical costs that exceeded Petitioner's $2 million

health coverage, there was substantial delay between the time

Petitioner incurred the medical bills and payment by the state.

26. Petitioner completely neglected his business between

1992 and 1996 but allowed his employees to assume operating

control in an effort to maintain his business income for his

family. During that time, Petitioner's company was charged with

additional violations.

27. Petitioner had no personal knowledge of the dumping and

spraying violations that occurred between 1993 and 1994.

Petitioner did not direct his employees to commit those acts.

When Petitioner learned of those violations, Petitioner accepted

responsibility and attempted to resolve the matters with the

respective state agencies. Petitioner had no money for an

attorney and attempted to resolve these matters without the

benefit of legal representation.

28. Between September and November in 1994, Petitioner was

personally responsible for negligently performing septic tank

services on four occasions in violation of the order revoking his

license. However, no evidence demonstrates a substantial

connection between the negligent performance of septic tank

repairs in 1994 and Petitioner's good moral character.

Negligence lacks the culpable intent inherent in bad moral

character.

29. No evidence demonstrates a substantial connection

between Petitioner's violation of the revocation order and

Petitioner's good moral character. Petitioner testified that he

made those repairs under the supervision of, and as an employee

of, his father or brother who are both registered septic tank

contractors.

30. When Peti tioner made the septic tank repairs,

Petitioner was facing substantial medical expenses for a severely

ill child and arguably had a moral duty to satisfy those

responsibilities. Petitioner has a high school education. He

has no other vocational training except in performing septic tank

services. He began working for his father and brother

immediately after high school and later began his own business.

31. Petitioner testified that between 1992 and 1995,

Petitioner had no intention of doing anything except taking care

of his son. Petitioner relinquished operating control of his

business to his employees, relied completely on his employees to

run his business, and attempted to preserve his business income

because he needed money for his son. Petitioner's testimony was

credible and persuasive.

32. Petitioner's prior disciplinary history does not

include an act of environmental harm by Petitioner's employees

after February 22, 1994, when the Department revoked Petitioner's

registration as a septic tank contractor. The most egregious of

the violations by Petitioner's employees required them to haul

septage. If Respondent grants Petitioner's application for

registration, Petitioner cannot haul septage because he is

permanently enjoined from doing so by the circuit court in

Collier County.

33. Petitioner's prior disciplinary history does not

include a violation by Petitioner after the last septic tank

repair completed by Petitioner in November 1994. Since that

time, Petitioner has paid outstanding fines of $5,000, and

Respondent has agreed to allow Petitioner to provide septic tank

services without the direct supervision of a registered septic

tank contractor.

34. Petitioner has not paid all of the fines and costs

assessed against him. However, the evidence submitted by

Petitioner refutes any arguable inference that a substantial

connection exists between Petitioner's good moral character and

his failure to pay the outstanding fines and costs. The evidence

shows a substantial connection between Petitioner's failure to

make payment and circumstances beyond Petitioner's control.

35. Respondent's determination of Petitioner's good moral

character, including the testimony of Respondent's expert, was

based solely on a review of the documents contained in

Respondent's agency file. When Respondent determined there was a

substantial connection between Petitioner's prior disciplinary

history and Petitioner's good moral character, neither Respondent

nor Respondent's witnesses made any attempt to contact Petitioner

to obtain an explanation of Petitioner's prior disciplinary

history or to independently investigate the connection between

Petitioner's disciplinary history and his good moral character

and the substantiality of the connection.

36. Petitioner's expla nation showed a substantial

connection between Petitioner's prior disciplinary history and

circumstances beyond Petitioner's control. Respondent failed to

refute Petitioner's explanation with credible and persuasive

evidence of a substantial connection between Petitioner's prior

disciplinary history and his good moral character. After hearing

Petitioner's explanation for his prior disciplinary history,

Respondent's expert testified that the evidence did not alter his

opinion that Petitioner lacked good moral character because

Petitioner still owed fines and costs and because Petitioner had

not yet said he was sorry.

CONCLUSIONS OF LAW

37. DOAH has jurisdiction over the parties and the subject

matter. Section 120.57(1). The parties were duly noticed for

the hearing.

38. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of evidence that Petitioner's application

for registration satisfies the requirement in Section

489.553(4)(a) for good moral character. Section 120.57(1)(h);

Florida Department of Transportation vs. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of

Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977).

39. Petitioner satisfied his burden of proof. Petitione r

showed by a preponderance of the evidence that he possesses good

moral character within the meaning of Section 489.553(4)(a).

40. To be eligible for registration as a septic tank

contractor, Section 489.553(4)(a) requires that an applicant

must:

. . . Be of good moral character. In

considering good moral character, the

department may consider any matter that has a

substantial connection between the good moral

character of the applicant and the

professional responsibilities of a registered

contractor, including, but not limited to:

the applicant being convicted or found guilty

of, or entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of contracting or the ability to

practice contracting; and previous

disciplinary action involving septic tank

contracting, where all judicial reviews have

been completed.

41. Respondent incorrectly argues that its denial of

Petitioner's application should be overturned only if

Respondent's determination was arbitrary and capricious. This is

a de novo hearing to determine whether Petitioner satisfies the

requirement in Section 489.553(4)(a) for good moral character.

Petitioner need only show by a preponderance of the evidence that

he satisfies the relevant statutory requirement. Petitioner

satisfied his burden of proof.

42. Even if the arbitrary and capricious test applied to

this proceeding, the evidence shows that Respondent's denial of

Petitioner's application was arbitrary and capricious.

Respondent offered no rational basis or intelligible standard to

define the statutory criteria for either "good moral character"

or a "substantial connection" between the matters considered by

Respondent and Petitioner's good moral character. Respondent did

not discuss either issue with Petitioner but limited the basis of

Respondent's determination to the documents in Respondent's file.

In Respondent's proposed recommended order, Respondent

characterized Petitioner's testimony as self-serving. During the

hearing, however, Respondent's counsel acknowledged the $3

million medical bills incurred by Petitioner and the payment of

the uncovered amounts by the state agency.

43. Respondent argues that its interpretation of Section

489.553(4)(a) is entitled to great weight because Respondent is

the state agency responsible for administering the statute. The

judicial doctrine that gives great weight to an administrative

construction of a statute by the agency responsible for its

administration is limited to matters infused with agency

expertise.

44. The matter of good moral character at issue in this

proceeding is not infused with agency expertise. It requires no

technical expertise in septic tank repairs, hauling, or pumping.

Respondent's construction of Section 489.553(4)(a) requires only

general interpretive skills that do not enjoy the presumption of

validity applicable to matters of agency expertise. Zopf v.

Singletary , 686 So. 2d 680 (Fla. 1st DCA 1997), reh'g denied ;

SAVE the St. Johns River v. St. Johns River Water Management

District , 623 So. 2d 1193, 1202 (Fla. 1st DCA 1993).

45. Even if Respondent's statutory interpretation were

infused with agency expertise, the interpretation is clearly

erroneous. Respondent's interpretation conflicts with the plain

language of Section 489.553(4)(a) because the evidence

demonstrates there is no substantial connection between the

matters considered by Respondent in reviewing the documents in

its agency file and Petitioner's good moral character. Rather,

the evidence shows that there is a substantial connection between

matters considered by Respondent in reviewing the documents in

its agency file and circumstances beyond Petitioner's control.

An agency's construction that conflicts with the unambiguous

language of a statute is clearly erroneous. Legal Environmental

Assistance Foundation, Inc. v. Board of County Commissioners of

Brevard County , 642 So. 2d 34, 36 (Fla. 1994); Hughes v. Variety

Children's Hospital , 710 So. 2d 683, 685 (Fla. 3d DCA 1998);

Arbor Health Care Company v. State, Agency for Health Care

Administration , 654 So. 2d 1020, 1021 (Fla. 1st DCA 1995);

Wingfield , 581 So. 2d at 197. The statute controls any conflict.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order finding that

Petitioner possesses good moral character within the meaning of

Section 489.533(4)(a) and granting Petitioner's application for

registration as a septic tank contractor.

DONE AND ENTERED this 21st day of June, 2000, in Tallahassee,

Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 -3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of June, 2000.

COPIES FURNISHED:

Dr. Robert G. Brooks, Secretary

Department of Health

Bin A00

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

Bin A02

2020 Capitol Circle, Southeast

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capitol Circle, Southeast

Tallahassee, Florida 32399-1701

Susan Mastin Scott

Chief Legal Counsel

Department of Health

Post Office Box 9309

Fort Myers, Florida 33902-9309

Michael F. Kayusa, Esquire

1922 Victoria Avenue, Suite A

Post Office Box 6096

Fort Myers, Florida 33911

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.