00-000258 Steve Deluca vs. Department Of Health Status: Closed Recommended Order on Wednesday, June 14, 2000.

Summary: By failing to serve a complaint on, or charge, the actual owner of the property, the agency lacked jurisdiction to proceed; complaint dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 00-0258

)

STEVE DELUCA, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on May 18, 2000,

in Deland, Florida, before Donald R. Alexander, the assigned

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Charlene J. Petersen, Esquire

Department of Health

400 Fentress Boulevard

Daytona Beach, Florida 32114

For Respondent: Christopher R. Ditslear, Esquire

Post Office Box 41

Deland, Florida 32721-0041

STATEMENT OF THE ISSUE

The issue is whether Respondent should correct a health

violation and have a $500.00 fine imposed for violating an agency

rule and statute, as alleged in the Citation for Violation issued

by Petitioner on December 22, 1999.

PRELIMINARY STATEMENT

This matter began on December 22, 1998, when Petitioner,

Department of Health, on behalf of the Volusia County Health

Department, issued a Citation for Violation charging that during

an inspection in October 1999, it discovered that Respondent,

Steve DeLuca, had violated Rule 64E-6.015, Florida Administrative

Code, by making repairs to his drainfield without the required

permits from the Volusia County Health Department. For this

violation, Petitioner proposes to impose a fine of $500.00 and

require Respondent to correct the violation.

Respondent denied the allegation and requested a formal

hearing under Section 120.569, Florida Statutes, to contest the

charges. The matter was referred by Petitioner to the Division

of Administrative Hearings on January 10, 2000, with a request

that an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated February 18, 2000, a final

hearing was scheduled on May 18, 2000, in Deland, Florida. On

May 16, 2000, the case was transferred from Administrative Law

Judge Stephen F. Dean to the undersigned.

At the final hearing, Petitioner presented the testimony of

William N. VanderLugt, an environmental specialist II with the

Volusia County Health Department. Also, it offered Petitioner's

Exhibits 1-6. All exhibits were received in evidence.

Respondent presented the testimony of Jim Ferullo, general

manager of Delco Oil Company, and offered Respondent's Exhibits 1

and 2, which were received in evidence. Finally, the undersigned

took official recognition of Rules 64E-6.003(1) and 64E-6.015,

Florida Administrative Code, and Sections 381.006(7) and

381.0065(4) and (5), Florida Statutes (1999).

There is no transcript of the hearing. Proposed Findings of

Fact and Conclusions of Law were filed by the parties on June 2,

2000, and they have been considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. This case involves an allegation that Respondent, Steve

DeLuca, violated an agency regulation and statute by making

repairs to a drainfield on property located at 1444 East New York

Avenue, Deland, Florida, without obtaining the necessary permits

from the Volusia County Department of Health (Health Department).

That department is under the direction and control of Petitioner,

Department of Health (Department). Respondent denies the charge

and, as clarified for the first time at hearing, contends that

the repairs were minor in nature and thus did not require a

permit, no authorization was given to the excavation firm which

performed the repairs, and the Citation was not issued to the

actual owner of the property.

2. On October 29, 1999, William N. VanderLugt ( Vanderlugt),

a Health Department environmental specialist, received a

complaint regarding a septic tank repair being undertaken at 1430

East New York Avenue, Deland, Florida. During the course of

inspecting that property, Vanderlugt observed excavation

activities on the drainfield located next door at 1444 East New

York Avenue.

3. More specifically, Vanderlugt observed an area in the

back yard approximately 6 feet by 20 feet in size which had been

recently excavated and a large pile of sand nearby. In the

excavated site, he saw a rock bed of the size commonly used in

drainfields, "clean" and "newly installed" rocks, and a "black

paper" covering a part of the rocks. Therefore, he concluded

that the excavating firm had just installed a new rock

drainfield. This type of activity constitutes a repair to an

existing drainfield and requires that such work be performed by a

licensed septic tank contractor. It also requires that

appropriate permits be obtained from the Health Department.

Although Respondent contended that the work was merely to correct

a "minor structural flaw" which would not require a permit,

Vanderlugt's testimony is more persuasive on this issue, and it

is found that a more substantial repair to the drainfield was

made.

4. Further inquiry by Vanderlugt revealed that no permits

had been obtained for the repair of a drainfield from the Health

Department by the excavating company, Collier Enterprises. After

a brief conversation with a Collier Enterprises employee, the

substance of which is hearsay in nature and cannot be used,

Vanderlugt visited the offices of Delco Oil Company and spoke

with Respondent, who is employed by that firm. In doing so,

Vanderlugt was under the impression that Respondent owned the

property in question.

5. During his brief conversation with Repondent, Vanderlugt

pointed out that he had to issue a citation because no permit had

been obtained for the work at the property in question. DeLuca

responded with words to the effect that "they [Collier

Enterprises] broke a pipe and they fixed what they broke."

Apparently, there was no discussion as to whether Respondent or

someone else actually owned the property.

6. Vanderlugt returned to the property in question and

performed a second inspection on November 3, 1999. Because no

permits had been obtained by that date, and the drainfield site

had been covered, a recommendation for a citation was prepared by

Vanderlugt. A Citation for Violation was later issued by the

Department on December 22, 1999, alleging that Respondent had

failed to obtain permits before making a drainfield repair. The

Citation was delivered to Respondent at Delco Oil Company.

Because Collier Enterprises was not licensed to perform the work,

it was given a first violation "warning" letter by the Health

Department, as required by a Department rule.

7. During later meetings with Respondent and others,

Vanderlugt learned that the actual owner of the property in

question was Deluca Properties, Inc., and not Steve DeLuca. For

some reason, however, the Department declined to amend its

citation and charge the actual owner with the alleged violation.

Although Petitioner asserted at hearing and in its Proposed

Recommended Order that Respondent is the owner's registered

agent, there is no competent evidence of record to support this

assertion.

8. According to the general manager of Delco Oil Company,

which is apparently owned by Steve Deluca and others, no

permission was given to the excavating company to make any

repairs. Indeed, Deluca Properties, Inc. has a licensed septic

tank contractor who makes all septic tank repairs, when needed.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties hereto pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

10. As the party which issued the charging document,

Petitioner bears the burden of proving by the preponderance of

the evidence that the allegation in the Citation for Violation is

true.

11. The Citation for Violation alleges that Respondent

violated Section 381.0065(4), Florida Statutes (1999), by

repairing "an onsite sewage treatment and disposal system without

first obtaining a permit approved by the department." The

Citation further alleges that Respondent's conduct also violates

Rule 64E-6.015, Florida Administrative Code, which reads in

relevant part as follows:

All repairs made to a failing onsite sewage

treatment and disposal system shall be made

only with prior knowledge and written

approval from the DOH county health

department having jurisdiction over the

system.

Any property owner . . . who has an onsite

sewage treatment and disposal system which is

improperly constructed or maintained, or

which fails to function in a safe or sanitary

manner shall request from the DOH county

health department . . . a permit to repair

the system prior to initiating the repair of

the system.

12. The evidence shows clearly that a repair to an onsite

sewage treatment and disposal system was made within the meaning

of the foregoing rule, and that such work required a permit from

the Health Department. However, the owner of the property was

never served with a copy of the Administrative Complaint or

formally named as a party in the complaint itself. Under these

circumstances, the Department had no jurisdiction to proceed.

Arthritis Medical Center, Inc. v. Dep't of Health and Rehab.

Srvcs. , 543 So. 2d 1304, 1305 (Fla. 4th DCA 1989)("a defendant is

entitled to personal service of original process before an

administrative board acquires personal jurisdiction"). While

Petitioner contends that Respondent was the registered agent of

the property owner, there was no competent evidence at hearing to

establish this critical fact. Accordingly, the complaint should

be dismissed for lack of jurisdiction.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health enter a final

order dismissing the Administrative Complaint for lack of

jurisdiction.

DONE AND ENTERED this 14th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

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 14th day of June, 2000.

COPIES FURNISHED:

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

Christopher R. Ditslear, Esquire

Post Office Box 41

Deland, Florida 32721-0041

William W. Large, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

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

enter the final order in this case.