20-004768 Radon Science Group, Inc. vs. Department Of Health Status: Closed Recommended Order on Friday, August 6, 2021.

Summary: Petitioner established, by a preponderance of the evidence, that Respondent's denial of its Application for Certification as a Radon Mitigation Business was incorrect, and that it was entitled to the requested certification.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ADON S CIENCE G ROUP , I NC . ,

Petitioner ,

vs. Case No. 20 - 4768

D EPARTMENT OF H EALTH ,

Respondent .

/

R ECOMMENDED O RDER

On May 18, 2021, Administrative Law Judge Robert J. Telfer III, of the

Florida Division of Administrative Hearings (DOAH), conducted an

evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2020), in

Tallahassee, Florida, via the Zoom web - c onference platform.

A PPEARANCES

For Petitioner: Paul A. Donnelly, Esquire

Donnelly & Gross, P.A.

Suite A - 1

2421 Northwest 41st Street

Gainesville, Florida 32606

For Respondent: Katelyn Rose Boswell, Esquire

Department of Health

Prosecution Ser vices Unit

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Whether Respondent Florida Department of HealthÔs (Department) denial

of Petitioner Radon Science Group, Inc.Ôs (RSG) Application for Certification

as a Radon Mi tigation Business was incorrect, as alleged in the Petition for

Formal Administrative Hearing (Petition).

P RELIMINARY S TATEMENT

In a letter dated September 11, 2020, the Department denied RSGÔs

Application for Certification as a Radon Mitigation Business because RSG

Ñperformed radon mitigation services for a fee while not certified, in violation

of section 404.056(2)(b), Florida Statutes, and Rule 64E - 5.1203(1), Florida

Administrative Code.Ò

RSG timely filed a Petition for Formal Administrative Hearing on

October 2, 20 2 0. On October 26, 2020, the Department referred this matter to

DOAH, which assigned the undersigned administrative law judge (ALJ).

The undersigned originally noticed this matter for final hearing on

December 18, 2020. On December 11, 2020 , the Department filed a Motion to

Compel Production and Answer on Deposition, which sought production of

certain documents requested in a Request to Produce, and to compel RSGÔs

C orporate Representative, Dawn Oggier Howell (Ms. Howell), to answer

certain questions that she refused at deposition. On December 17, 2020, the

undersigned issued an Order Granting RespondentÔs Motion to Compel,

which cancelled the final hearing on December 18, 2020 ; ordered RSG to

produce all responsive documents referenced in th e Motion to Compel ; and

ordered the parties to attend a telephonic case management conference on

January 15, 2021. After RSG filed a Consent Motion to Reschedule Case

Management Conference, the undersigned conducted a telephonic case

management conference on January 19, 2021, and, on January 20, 2021,

entered an Order Rescheduling Hearing by Zoom Conference, which set the

final hearing for March 3, 2021.

On February 15, 2021, RSG filed a Consent Motion to Reschedule Hearing

Date, which the undersigned gran ted. The undersigned, thereafter, issued an

Amended Notice of Hearing by Zoom Conference, which set the final hearing

in this matter for May 4, 2021. On May 3, 2021, RSG filed a Consent Motion

to Reschedule Final Hearing, and the undersigned issued an Amen ded Notice

of Hearing by Zoom Conference, which set the final hearing in this matter for

May 18, 2021.

The final hearing in this matter occurred on May 18, 2021, via the Zoom

web - conference format. RSG called Ms. Howell, the owner of RSG, as its lone

witn ess, and the undersigned admitted PetitionerÔs Exhibits P2 and P4 into

evidence. The Department called Joseph Kidder, an Environment Specialist

III with the DepartmentÔs Radon and Indoor Air Program, as its lone witness.

The undersigned also admitted Joint Exhibits 1 through 30 into evidence.

At the conclusion of the final hearing, the undersigned provided the

parties 10 days from the date of the filing of the transcript with DOAH to file

proposed recommended orders. The final hearing Transcript was filed with

DOAH on June 21, 2021. On June 29, 2021, the Department filed an

Unopposed Motion for Extension of Time for Filing Proposed Recommended

Orders, which the undersigned granted on June 30, 2021. The parties,

thereafter, timely filed their proposed recomm ended orders on July 9, 2021,

which the undersigned has considered in the preparation of this

Recommended Order.

All statutory references are to the 2020 codification of the Florida

Statutes, unless otherwise indicated.

F INDINGS OF F ACT

1. The Department is charged with regulating Environmental Radiation

Standards and Certifications pursuant to section 404.056, Florida Statutes,

and Florida Administrative Code Chapter 64E - 5.

2. RSG registered as a corporation with the State of Florida, Division of

Corpora tions, on or about January 14, 2020. Ms. Howell is the initial officer

and director of RSG. RSGÔs Articles of Incorporation state, as its purpose for

organization:

PROVIDE TESTING SERVICES AND PRODUCTS

TO MEASURE RADON.

PROVIDE MITIGATION SERVICES AND

PRO DUCTS TO REDUCE RADON.

3. In February 2020, Ms. Howell opened a bank account at Chase Bank on

behalf of RSG.

4. Ms. Howell testified that she has been a Florida - certified radon

measurement and radon mitigation specialist for approximately 13 years.

5. Pr ior to RSGÔs incorporation, Ms. Howell served as a co - owner and co -

managing member of Land Environmental Group, LLC (LEG), which she

testified was incorporated in 2008. LEG is a certified radon mitigation

business in the State of Florida.

6. Ms. Howell tes tified that she co - owned and co - managed LEG with her

husband, Kurt Howell. Although she produced no documentary evidence

concerning the corporate structure of LEG, i.e., operating agreements, tax

returns, etc., she testified that she is the 98 percent owne r of LEG, and that

Mr. Howell has a two percent ownership stake in LEG.

7. Beginning in September 2016, Ms. and Mr. Howell began living apart.

Thereafter, Ms. Howell testified that, after reviewing LEG bank and credit

card records, she learned that Mr. Ho well was using LEG funds for his

personal use.

8. Starting in January 2020, Ms. Howell testified that Mr. Howell began

excluding her from LEG, including LEGÔs bank accounts, marketing and

advertising accounts, and her LEG email account. Ms. Howell testifie d that

she has filed a civil lawsuit to regain access to LEG and its accounts, but at

the time of the final hearing, remained excluded.

9. Ms. Howell testified that as a result of this exclusion, she contacted

Mr. Kidder to discuss her options regarding o perating a radon mitigation

business, as Ñthere was work that needed to be done and Mr. Howell was

wasting the funds. So, I wanted to be able to continue doing the work that

could be done.Ò She further testified that after a discussion with Mr. Kidder,

she decided Ñto open up a new mitigation business that when Ï just allow the

licensures for LEG to expire and this would take over for that business.Ò The

Ñnew mitigation businessÒ was RSG.

10. Ms. Howell testified that despite her exclusion from LEGÔs bank

a ccounts, marketing and advertising accounts, and her LEG email account in

early 2020, she still had the authority to direct LEG, inter alia, to

subcontract radon measurement mitigation with another business. She

stated that during 2020, she directed LEG to enter into contracts to perform

radon mitigation; according to Ms. Howell, RSG Ñacted as the accounting or

billing subcontractor for [LEG]Ò for these contracts.

1 1 . On April 5, 2020, Ms. Howell entered into a contract with Edward

Malloy to install a radon mitigation system at his residence in Ocala. The

cover letter to Mr. Malloy contains a logo and states ÑRADON SCIENCE

GROUPÒ at the top of the page. The letter then states:

Thank you for giving Land Environmental Group

(LANDENV), c/o Radon Science Group, Inc., the

opportunity to submit this proposal to install a

Radon Mitigation System at the above referenced

address.

Radon Science Group, Inc. will perform radon

mitigation and post mitigation testing services.

Ms. Howell signed this cover letter, and un derneath her signature, lists

ÑLand Environmental Group, c/o Radon Science Group, Inc., Florida Certified

Mitigation Business (RB2263) Dawn Howell; Florida Certified

Measurement/Mitigation Specialist (R2343, R2539)[.]Ò

12. Attached to the April 5, 2020, co ver letter is an ÑAgreement Between

Client and Contractor,Ò which, like the cover letter, contains a logo and states

ÑRADON SCIENCE GROUPÒ at the top of each page. The first paragraph of

this document states:

THIS AGREEMENT, (the ÑAgreementÒ) is made

this 5 April 2020 , by and between Land

Environmental Group, c/o Radon Science Group,

Inc. with its principal address at [address] (the

ÑContractorÒ ), and Edward Malloy (the ÑClientÒ ),

whose address is [address].Ò

This Agreement lists the ÑContractorÒ as LEG, c/o RSG, in two additional

subsections.

13. On April 20, 2020, Radalink Ð a third - party company that produces

post - mitigation testing reports for certified radon businesses and provides

these reports to the Department Ð submitted a Certified Radon Report for t he

Malloy residence (Radalink Report). The Radalink Report listed, as the

ÑLicensed Radalink Radon InspectorÒ connected with this residence, both

LEG and Ms. Howell. The Radalink Report reflects that radon levels at the

Malloy residence were below the Envi ronmental Protection AgencyÔs

recommended action limits. Radalink sent a copy of the Radalink Report to

the Department.

14. The evidence presented at the final hearing reflects that RSG received

two payments in the amount of $1,600.00 for the work performe d at the

Malloy residence. The evidence further reflects that these funds were

deposited into the RSG CHASE bank account.

15. The evidence presented at the final hearing further reflects that an

employee of RSG Ð Michael Stewart Ð received a paycheck, dated Ap ril 23,

2020, drawn from the RSG Chase B ank account, for work done on the Malloy

residence.

16. On June 2, 2020, Ms. Howell, on behalf of RSG, submitted to the

Department an ÑApplication for Certification as a Radon Business,Ò

(Application) and specificall y selected the application for a ÑRadon Mitigation

Business[.]Ò On June 3, 2020, RSG sent a check in the amount of $1,275.00 to

the Department, which was the application fee.

17. A supplement to the Application included a page in which Ms. Howell,

on behal f of RSG, and on RSG letterhead, listed and acknowledged certain

requirements contained in rule 64E - 5.1207(10) through (13). Notably, r ule

64E - 5.1207(10) provides:

(10) The certified radon mitigation business shall

assure that radon mitigation system inst allations

are performed under the direct supervision of a

certified radon mitigation specialist or certified

radon mitigation technician. A certified radon

mitigation business may contract with a

noncertified business to perform mitigation

installation pro vided that work performed by non -

certified persons is under the direct supervision of a

certified radon mitigation specialist or certified

radon mitigation technician.

18. On June 4, 2020, Mr. Kidder sent an email to Ms. Howell concerning

the Application, and requested information concerning the project at the

Malloy residence. Mr. KidderÔs email noted that the current occupant of the

residence reported issues with the work performed, that Ñthere has been no

post - mitigation testing[,]Ò and that Ñthe busine ss listed on the receipt is

Radon Science Group, not Land Environmental Group. Can you provide more

information on this mitigation?Ò

19. Ms. Howell responded to Mr. KidderÔs email the same day, attaching

the Radalink Report.

20. Ms. Howell, on June 8, 2020 , sent an email to Mr. Kidder, inquiring if

the Department required any additional information for the Application. In

subsequent emails between Ms. Howell and Mr. Kidder, through June, July,

and August 2020, the Department requested various i tems of in for mation

from Ms. Howell, which she provided, but did not request any additional

information concerning the project at the Malloy residence. 1

21. In a letter dated September 11, 2020, the Department denied the

Application. The letter states:

Section 404.056 , Florida Statutes, authorizes the

Florida Department of Health (Department) to set

criteria for certification, to approve or deny an

application, and to adopt rules to administer and

enforce the certification requirements for

individuals and businesses th at perform radon gas

or radon progeny measurements or mitigation of

buildings for radon gas or radon progeny. Chapter

64E - 5, Florida Administrative Code, was adopted to

implement these statutory duties.

Facts

Pursuant to Rule 64E - 5.1207, Florida

Administ rative Code, Radon Science Group, Inc.,

applied on June 2, 2020 for certification as a radon

mitigation business. The initial application was

incomplete and was supplemented on June 19,

2020, with additional information to complete the

application. However , on or about April 6, 2020 Ð

more than two months before completing the

application Ð Radon Science Group, Inc., performed

radon mitigation in exchange for a fee.

Section 404.056(2)(b), Florida Statutes, states that

a person[] may not perform radon mitigatio n and

charge a fee or receive renumeration for the

mitigation unless the business is certified by the

Department. Rule 64E - 5.1203(1), Florida

Administrative Code, states that an uncertified

1 For example, the Department and Mr. Kidder inquired how Ms. Howell wished to move her

individual radon mitigation and measurement specialist certificate to be associated with

RSG; asked Ms. Howell to provide additional inform ation concerning RSGÔs worker health

and safety plan; asked Ms. Howell to provide attachments of RSGÔs advertisements; and

asked Ms. Howell to provide acknowledgment, on RSG letterhead, of the requirements of

r ule 64E - 5.1207(10) through (12), which is des cribed in paragraph 17 above.

business may not mitigate the presence of radon in

Florida for a f ee or other remuneration. Radon

Science Group, Inc., violated these provisions by

mitigating radon for a fee on at least one occasion

on or about April 6, 2020, while not certified.

Conclusion

Pursuant to section 404.056(2)(g), Florida Statutes,

the Appl ication for Certification as a Radon

Mitigation Business submitted by Radon Science

Group, Inc., is denied because Radon Science

Group, Inc., performed radon mitigation services

for a fee while not certified, in violation of section

404.056(2)(b), Florida Statutes, and Rule 64E -

5.1203(1), Florida Administrative Code .

22. At the final hearing and in its proposed recommended order, the

Department contends that LEGÔs failure to submit a DH Form 1753 Ð which

is a monthly report that certified mitigation busines s e s submit to the

Department for all work performed Ð that included work on the Malloy

residence is evidence that RSG, rather than LEG, performed that work. The

Department further contends that RSG performed radon mitigation services

in exchange for a fee on several other occasions, and that the Department

never received any DH Form 1753 reflecting that work. However, the

undersigned finds that the September 11, 2020, denial of the Application

makes no reference to these contentions, but instead denies the App lication

for performing radon mitigation services Ñon at least one occasion on or about

April 6, 2020, while not certified[,]Ò which was the work on the Malloy

residence.

23. RSG contend s in its Proposed Recommended Order , and Ms. Howell

testified , that sh e and LEG oversaw radon work for the Malloy residence,

designed and installed the radon mitigation system, and performed the

required post - radon mitigation testing, and that RSG served as the

accounting and billing subcontractor. However, the contract betw een

Mr. Malloy and ÑLand Environmental Group È c/o Radon Science Group,

Inc. , Ò states that RSG Ñwill perform radon mitigation and post mitigation

testing.Ò According to the contract with Malloy, RSGÔs duties appear to

include all of the components of rado n mitigation, which are more than

simply serving as the accounting and billing subcontractor of LEG.

24. Ms. Howell and RSG also contend that Ms. Howell, as co - owner and

co - manager of LEG, and sole owner of RSG, could subcontract radon

mitigation work to R SG, a noncertified business, pursuant to r ule 64E -

5.1207(10), so long as LEG or Ms. Howell directly supervised RSGÔs work.

Ms. Howell and RSG further contend that this is exactly what happened with

the radon mitigation work on the Malloy residence.

25. Rul e 64E - 5.1207(10) explicitly states, in part, that:

A certified radon mitigation business may contract

with a non - certified business to perform mitigation

installation provided that work performed by non -

certified persons is under the direct supervision of a

certified radon mitigation specialist or certified

radon mitigation technician.

While a plain reading of this provision states that a radon mitigation

business may contract with a noncertified business to perform mitigation

installation, it does not ex plicitly require a written contract. Further, a strict

reading of this provision would suggest that Ms. Howell, as co - manager of

LEG, should enter into a written contract with herself, as owner of RSG,

which under the facts of this case was unnecessary.

2 6. Based on the testimony of Ms. Howell, and a review of the contract for

the radon mitigation work on the Malloy residence, the undersigned finds

that a contractual relationship between LEG and RSG existed that is

consistent with the requirements of r ule 64E - 5.1207(10). LEG and RSG are

signatories to this contract, along with Ms. Howell, and Ms. Howell and LEG

provided direct supervision over the project at the Malloy residence.

27. The undersigned finds that RSG performed radon mitigation services

for a f ee on or about April 6, 2020, on the Malloy residence, as stated in the

DepartmentÔs September 11, 2020, letter.

28. The undersigned further finds, however, that RSG has established, by

a preponderance of the evidence, its performance of radon mitigation

i nstallation at the Malloy residence on or about April 6, 2020, was done in

accordance with a contractual relationship with LEG, a certified radon

mitigation business, and under the direct supervision of LEG and

Ms. Howell, a certified radon mitigation spe cialist, which is consistent with

r ule 64E - 5.1207(10).

C ONCLUSIONS OF L AW

29. DOAH has jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 120.569 and 120.57(1 ).

30. The Department is charged with regulating the Environmental

Radiation Standards and Certifications in the State of Florida pursuant to

section 404.056 and chapter 64E - 5.

31. This proceeding involves the denial of an application for certification

as a radon mitigation business. In this type of cas e, RSG has the ultimate

burden of persuasion to prove entitlement to the certificate applied for, by a

preponderance of the evidence. DepÔt of Transp. v. J.W.C. Co., 396 So. 2d 778

(Fla. 1st DCA 1981); § 120.57(1)(j), Fla. Stat.

32. However, as the Departm ent has alleged that the certification should

be denied based on a violation of the operative statute, the Department must

prove unfitness for the certification by a preponderance of the evidence. See

DepÔt of Child. & Fams. v. Davis Fam. Day Care Home, 16 0 So. 3d 854, 857

(Fla. 2015); DepÔt of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932,

934 (Fla. 1996).

33. In its letter dated September 11, 2020, which denied RSGÔs

application, the Department concluded:

Pursuant to section 404.056(2)(g), Florida Statutes,

the Application for Certification as a Radon

Mitigation Business submitted by [RSG] is denied

because [RSG] performed radon mitigation services

for a fee while not certified, in violation of

section 404.056(2)(b), Florida Statutes, and Rul e

64E - 5.1203(1), Florida Administrative Code .

The September 11, 2020, letter references one instance of RSG performing

radon mitigation services for a fee while not certified Ð the radon mitigation

installation at the Malloy residence on or about April 6, 2 020.

34. Section 404.056(2)(b), which the Department references in its

September 11, 2020, letter, states:

A person may not participate in performing radon

gas or radon progeny measurements, including

sample collection, analysis, or interpretation of

such measurements, or perform mitigation of

buildings for radon gas or radon progeny, and

charge a fee or obtain other remuneration as

benefit for such services or devices, unless that

person is certified by the department. A

certification issued in accordance with this section

automatically expires at the end of the certification

period stated on the certificate. An uncertified

business may subcontract radon measurements to a

certified radon business. The uncertified

commercial business must provide the comple te

radon report from the certified radon business to

the client and direct all the clientÔs questions about

the measurements or radon report to the certified

radon business.

35. Section 404.056(2)(g) provides:

The department may establish enforcement

pro cedures; deny an application for initial or

renewal certification; deny, suspend, or revoke a

certification; or impose an administrative fine not

to exceed $1,000 per violation per day, for the

violation of any provision of this section or rule

adopted und er this section.

36. Rule 64E - 5.1203(1) provides:

No person may test for or mitigate the presence of

radon in Florida for a fee or other remuneration

unless such person has been certified as provided

by this part. These regulations in no way exempt

any p erson from other state and local occupational

licensure requirements.

37. As discussed at length above, r ule 64E - 5.1207(10) provides:

A certified radon mitigation business may contract

with a non - certified business to perform mitigation

installation prov ided that work performed by non -

certified persons is under the direct supervision of a

certified radon mitigation specialist or certified

radon mitigation technician.

38. Although the Department established that RSG performed radon

mitigation services for a fee on April 6, 2020, without the requisite

certification, RSG presented competent substantial evidence to establish, by

a preponderance of the evidence, that its performance of radon mitigation

installation at the Malloy residence on or about April 6, 2020, was done in

accordance with a contractual relationship with LEG, a certified radon

mitigation business, and under the direct supervision of LEG and Ms.

Howell, a certified radon mitigation specialist, in accordance with r ule 64E -

5.1207(10).

39. Based on the foregoing, the undersigned concludes that the

DepartmentÔs September 11, 2020, denial of RSGÔs Application for

Certification as a Radon Mitigation Business was incorrect, and that RSG

has established, by a preponderance of the evidence, that it is entitled to the

certification.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMENDS that the Florida Department of Health

rescind its September 11, 2020, denial of Radon Science Group, Inc.Ôs

A pplication for Certification as a Radon Mitigation Business, and issue a

Certification as a Radon Mitigation Business to Radon Science Group, Inc.

D ONE A ND E NTERED this 6 th day of August, 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER II I

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6 th day of August, 2021 .

C OPIES F URNISHED :

Katelyn Rose Boswell, Esquire Dawn Howell

Florida Department of Health Randon Science Group, Inc.

Prosecution Services Unit 7131 Northw est 160th Street

4052 Bald Cypress Way , Bin A - 02 Trenton, Florida 32693

Tallahassee, Florida 32399

Paul A. Donnelly, Esquire

Kelly Fox, Esquire Donnelly & Gross, P.A.

Department of Health Suite A - 1

2585 Merchants Row 2421 Northwest 41st Street

Tallahassee, Florida 32311 Gainesville, Florida 32606

Louise St. Laurent, General Counsel Wanda Young, Agency Clerk

Departme nt of Health Department of Health

4052 Bald Cypress Way, Bin C - 65 4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1703 Tallahassee, Florida 32399 - 1703

Scott Rivkees, M.D.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A - 00

Tallahassee, Florida 32399 - 1701

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 t he Final Order in this

case.