03-004765 Ronald E. Burkett vs. Department Of Health Status: Closed Recommended Order on Tuesday, March 16, 2004.

Summary: Petitioner`s application was deficient on its face and Respondent showed that Petitioner`s past violations supported its decision to deny him a septic tank contractor`s license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD BURKETT, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4765

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above - styled

caus e on February 25, 2004, by Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrative

Hearings, in Pensacola, Florida.

APPEARANCES

For Petitioner: E. Brian Lang, Esquire

One West Lloyd Street

Pensacola, Florida 32 501

For Respondent: Rodney M. Johnson, Chief Counsel

Department of Health

Northwest Law Office

1295 West Fairfield Drive

Pensacola, Flor ida 32501

STATEMENT OF THE ISSUE

Whether the Agency should register the Petitioner as a

septic tank contractor?

PRELIMINARY STATEMENT

The Petitioner applied for registration as a septic tank

contract or. The Department of Health advised the Petitioner by

letter of its intent to deny his application because of various

problems with the application and his qualifications. This

letter advised the Petitioner of his right to an administrative

hearing on t he denial of his application and the Petitioner

requested a hearing. The Department forwarded the matter to the

Division of Administrative Hearings on or about December 18,

2003. The case was set for hearing for February 17, 2004, by a

Notice of Hearing dated January 9, 2004. Thereafter, an amended

notice was issued on January 22, 2004, continuing the case until

February 25, 2004. The case was heard as noticed, except that

the undersigned was assigned to hear the case for Judge Don W.

Davis, who was una ble to travel because of illness.

The Department of Health called Robert J. Kuhn and Robert

A. Knott to testify. The Petitioner testified in his own

behalf. The parties stipulated to the introduction of the

letter of denial dated October 7, 2003, as Exhi bit 9, and to the

authenticity of Exhibits 1 through 6, and 8. These exhibits and

Exhibit 7 were received into the record.

Both parties submitted proposed findings that were read and

considered.

FINDINGS OF FACT

1. The Petitioner, Ronald Burkett, appl ied for

registration has a septic tank contractor to the Department of

Health, the regulatory and permitting authority.

2. The Department noticed the Petitioner by letter of its

intent to deny his application for various grounds and that he

had a right to a formal hearing. The Petitioner made a timely

request for a formal hearing and these proceedings ensued.

3. The application filed by the Petitioner was filled out

by his now ex - wife, Susan Burkett, who had previously been a

licensed septic tank contra ctor and the Petitioner's employer.

The couple did business in the name of Working Man Septic Tank

(Working Man). Susan Burkett filed out the application because

the Petitioner does not read or write.

4. The Petitioner as the employee of Working Man i nstalled

a septic tank without a license under a complex set of

circumstances in which the property owner, employees of the

Department of Health and the Petitioner sought to eliminate a

serious health problem at a rental property. The existing

septic syst em had failed and raw sewage was on the ground in the

yard of single family residence which was being rented. The

Department of Health sought to eliminate the nuisance. The

Petitioner undertook to fix the system, submitted an

application, and commenced w ork. Thereafter, it was determined

that public sewer service was available, and this precluded

issuance of the permit to repair the septic system.

5. There is conflicting testimony about what occurred

next; however, based upon the testimony of all the wi tnesses,

the Petitioner left the tank he had installed in the ground; the

owner hooked up the system; and the problems were eliminated.

However, Susan Burkett received a warning letter from the

Department of Health for having commenced the work without th e

permit.

6. In 1994, the Petitioner was disciplined for septic tank

contracting without a license, for installing septic tanks

without a permit, and for substandard work in contracting.

7. In 2003, Burkett repaired and replaced a distribution

box at 638 Lakewood Road without a permit or an inspection which

resulted in his now ex - wife, Susan Burkett, receiving a fine of

$1,000, as the responsible contractor.

8. Complaint SC 0752 alleges that U.S.A. Septic abandoned

its contract and failed to fully perfor m a repair. Ron Burkett

received checks in the amount of $3,500, which were negotiated

in due course.

9. Profit and Loss Statements which were part of tax

documents submitted with the Petitioner's application indicated

that they were for Ron's Septic T ank Service and Ronald E.

Burkett. However, these statements were prepared in error by

the Petitioner's accountants who subsequently supplied corrected

documents showing the Petitioner's business name to be U.S.A.

Septic Tank Co. and Ronald E. Burkett, Pr oprietor. Ron's Septic

Tank Service is an unrelated septic contracting company owned

and operated by another individual. This appears to have been a

scrivener's error by the accountant which was corrected.

However, the corrected documents are at odds wi th the business

organization which supposedly existed, that is, U.S.A. Septic

Tank Co., operated by Susan Burkett. At a minimum, the

activities of U.S.A. Septic Tank Co. cannot be separated from

the Petitioner's activities, and the Petitioner cannot divor ce

himself from misfeasance and malfeasance of that company or

other companies which he worked for as an employee of his wife.

10. The Construction Industry Certificate of Exemption

from Florida Workers' Compensation Law filed with the

application had ha d the expiration date altered. While the

Petitioner may not have been responsible for the alteration, his

application was facially deficient by failing to have a current

exemption certificate.

CONCLUSIONS OF LAW

11. The Division of Administrative Hear ings has

jurisdiction over parties and subject matter in this case

pursuant to Section 120.569, Florida Statutes.

12. Because this is an application case, the Petitioner

has the burden of proof to establish that his application is

facially sufficient. The burden is by a preponderance of the

evidence. See Section 120.57(1)(j), Florida Statutes.

13. The application is not facially sufficient because it

lacks a current workmans' compensation exemption certificate.

The error on the Profit and Loss Sta tement was corrected by the

accountant, and it is sufficient to meet the application's

requirements.

14. The Department has put forth affirmative grounds for

denying the license. The Department has the burden to prove

these allegations by a preponderanc e of the evidence. The

Department showed that two predecessor septic tank contracting

companies with which the Petitioner was intimately associated

either as owner and operator or as the employee and husband of

the "owner" and "operator" have been discipl ined for being

unlicensed, doing work without the required permits, and doing

substandard work. Although there are substantial mitigating

factors regarding one of the allegations, notwithstanding the

name changes and changes in the licensee, the Petitione r has

been involved in unlicensed contracting for over a period of

nearly ten years.

15. Section 489.553, Florida Statutes, requires in

pertinent part that the individual applying for registration be

of good moral character. The statute states that in considering

good moral character, the Department may consider any matter

that has a substantial connection with the professional

responsibilities of a registered contractor. Unlicensed

contracting and contracting without the required permits are the

type s of violations which can be considered.

16. The Department showed good cause to deny the

registration of the Petitioner for lack of good character.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Department of Health deny the Petitioner's

application for registration as a septic tank contractor.

DONE AND ENTERED this 16th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of March, 2004.

COPIES FURNISHED:

Edward Brian Lang, Esquire

One West Lloyd Street

Pensacola, Florida 32501 - 2635

Rodney M. Johnson, Chief Counsel

Department of Health

Northwest Law Office

1295 West Fairfield Drive

Pensacola, Florida 32501

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 323 99 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e 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.